The H-1B visa program generally allows a foreign employee to work for a specific sponsoring American employer. As is true in many employment situations, the location of work can change. The U.S. Citizenship and Immigration Services (USCIS) has published a policy memorandum (PDF, 119 KB) making clear that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.
In publishing this policy, USCIS clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.
The guidance, effective Feb. 22, 2018, explains that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:
- The beneficiary will be employed in a specialty occupation; and
- The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.
When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.
USCIS has reached the congressionally mandated H-1B cap for fiscal year (FY) 2018. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2018 H-1B cap.
Normally, USCIS begins accepting applications for the next fiscal year exactly 6 months before the start of the next fiscal year. USCIS’ fiscal year for 2019 will start October 1, 2018. This means they should accept applications for FY2019 beginning April 1, 2018. Since April 1st is a Sunday, it is likely USCIS will accept applications for the H-1B 2019 season starting April 2, 2019.
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