Just before this year’s H-1B lottery, USCIS published a memorandum that requires petitioners who place their H-1B employees at third-party worksites to provide significantly more evidence to establish the employer-employee relationship. Such evidence could include documentation of specific work assignments, copies of contractual agreements, itineraries, and detailed work statements covering the entire duration of H-1B employment. The memo aligns with the Buy American, Hire American executive order issued by President Trump at the beginning of his term. The Department of Labor has also made changes to its Labor Condition Application, requiring the legal business name of the end-user client at whose worksite the beneficiary intends to work.
However, a lawsuit filed against USCIS in New Jersey claims that the agency exceeded its authority in issuing additional requirements on third-party worksite H-1B petitions and violated the Administrative Procedures Act. Several small staffing companies along with the Small and Medium Enterprise Consortium (a trade organization) are seeking a temporary restraining order to stop USCIS from enforcing the memo. The lawsuit alleges an impermissible focus on the alien beneficiary instead of the petitioner, and expresses concern that the new requirements will be impossible to meet.