The USCIS released new guidance that clarifies that staffing firms are eligible to file petitions under the H-1B visa program even when they place workers at third-party sites. An amended FAQ was released on Monday, March 12 to the January 2010 USCIS Neufeld memo. The Neufeld memo originally made it unclear whether staffing firms could establish the employer-employee relationship necessary to file H-1B petitions since the employees would be at third-party work sites.
This new guidance clarifies that the staffing firm model is indeed eligible to participate in the H-1B program. According to the new guidance, staffing firms can demonstrate an employer-employee relationship if they can prove whether they will pay the beneficiary’s salary, determine the beneficiary’s location and relocation assignments, and perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary.
If the H-1B worker, the beneficiary of the H-1B petition, will perform services at an end-client/third-party location, the petitioning H-1B employer is not required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary.
According to the USCIS, while documents from the end-client may help determine whether a valid employer-employee relationship will exist, this type of documentation is not required. The H-1B petitioner may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether the petitioner has met the burden in establishing that a qualifying employer-employee relationship will exist.