At the American Immigration Lawyers Association (AILA) 09/2010 Stakeholder Conference, the Vermont Service Center (VSC) advised that if compliance issues arose during the previous H-1B approval period, VSC could request evidence of all work performed during the previous H-1B approval period on requests for extension cases. VSC also confirmed that they are issuing one-year approvals where third-party work assignment is documented for less than one-year.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, it is suggested that the following practice pointers be utilized in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);
2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;
3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor’s name, and supervisor’s telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate “right to control” the Beneficiary;
4. Provide evidence of “qualifying employment,” such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and
5. Submit Employee Handbooks as evidence of “Employer-Employee relationship” and “right to control.” Petitioner’s Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary’s work, right to hire/fire, etc. All of the previous stated items for the Petitioner’s Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo (AILA Doc. No. 10011363).

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