The USCIS has once again decided to single out the staffing industry, in particular the IT staffing industry and has issued a new policy memorandum designed to make it more difficult for small and medium sized U.S. staffing companies to employ H-1b workers. The new policy specifically notes that it will be more difficult to prove an employer-employee relationship and get an H-1b approved if the 3rd party placement is multi-layered. For many small and medium sized US companies, the way in which they break into the staffing industry is by starting out as sub-contractors.
There are 3 take-aways from this memo:
1. We expect the length of H-1b approvals to be limited to the expiration of the existing PO, JO, SOW, etc;
2. The end client must confirm the details of the job description and corroborate that the position is a specialty occupation; and,
3. We expect an increase in denials over the issue of whether a position is a specialty occupation due to the USCIS “single-degree” rule and the inclusion in many requisitions of language such as “Bachelors degree in Computer science or related degree or relevant experience”
Using the Neufeld memo from 2010 as our guide, it took over a year for many end users of IT staffing services to be willing to provide end client letters, now a common and routine practice and we expect it to take some time for the end users to be willing to modify the language in the end client letters to satisfy the newly imposed requirements.