Over the past few months, the U.S. Department of Labor (USDOL) has tightened restrictions for H-1B workers placed at third-party worksites. These changes are in accordance with the presidential administration’s “Buy American and Hire American” executive order.
In a policy memorandum from February 2018, the USCIS announced that it would require all U.S. employers to provide thorough “itineraries” outlining details of H-1B holders’ work at third-party worksites. These itineraries should include the H-1B holder’s duties, the H-1B holder’s qualifications to perform the job, the duration of the placement, and the reason for the placement. Furthermore, U.S. employers should anticipate having to prove that they have the right to control the H-1B holders’ work for the duration of the placement.[i]
In May 2018, the USDOL proposed changes to the Labor Condition Application (LCA) that would require the legal business name of the third-party worksite to be written in the LCA in order to be approved. Currently, the LCA only requires that employers list the addresses for all H-1B worksites, not the company name(s). Under the proposed changes, however, U.S. employers would be required to list all worksites at which there is a “reasonable expectation” of placement of H-1B workers. To accommodate this change, the USDOL predicts that it will need three times the number of hours in order to adequately assess and process this increase in information.[ii]
The end results of both the actual changes and the proposed changes would be increased processing time for H-1B petitions and increased costs for the employer. This is especially true for U.S. companies filing H-1B transfer petitions. An H-1B transfer petition, which currently takes a few weeks to file, will increase by an additional number of weeks. This may be a challenge for companies wanting H-1B workers to start their new employment on a tight timeline. Another consequence of these changes may be that third-party worksites lose H-1B workers who are placed at their company on a contract basis, which is a common practice in the IT industry. Third-party worksites may want to consider sponsoring H-1B-holding contract employees as a preventative measure against losing their services due to increased H-1B restrictions.
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[i] The USCIS seems eager to deny petitions on inability to prove this ground. Specifically in our practice, we have seen an increase in the number of Requests for Evidence that ask the U.S. employer to prove its right to control an employee in H-1B status. This is especially true for employees in H-1B status who work partially from home or travel to different third-party sites such as manufacturing plants or mines. As a best practice, a U.S. company should have a firmly outlined structure for how it manages and oversees employees working in different locations.
[ii] Currently, it takes 7 days for an LCA to be approved by the USDOL. If the USDOL’s estimate is correct, LCAs under the proposed rule would take 21 days to be approved.
Victoria Gentry is an associate attorney with The Immigration Group, P.C. practicing exclusively in the areas of work visas and employment-based green cards. She first became interested in immigration law when her stepfather emigrated from El Salvador to the United States. Now she enjoys assisting corporate clients with a variety of immigration needs including international transfers, visa eligibility, and the green card process. She works primarily with professionals in IT, Engineering, Finance, Pharmacy, and Insurance.