by Chris Musillo





The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary's work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):



H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner's staff and not to third-party clients' staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner's proprietary software/processes.

H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- "Job-Shop" where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary's work.

Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an "as-needed" basis.
o Beneficiary is working in a "core position". An example of a "core position" is working on a client's payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary's work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary's progress reviews are completed by the third-party company.