H-1B RFE · Client and Third Party Placement

USCIS issued an RFE because the H-1B worker will perform services for a third party?

Third party placement does not by itself disqualify an H-1B petition. The response should establish the bona fide specialty occupation position, the substantive duties the beneficiary will perform, the relevant educational requirements, and the relationship among the petitioner, client and other parties.

The current rule does not require proof of every daily assignment for the entire validity period.

Under the current H-1B regulations, the petitioner must establish at filing that it has a bona fide specialty occupation position available for the beneficiary as of the requested start date. The petitioner is not required to prove specific day-to-day assignments for the entire requested validity period.

USCIS may nevertheless request contracts, work orders or similar evidence where relevant to show the bona fide nature of the position and the minimum educational requirements for the work. When the beneficiary will be staffed to a third party, the requirements of that third party can be especially relevant to whether the position qualifies as a specialty occupation.

Do not use outdated itinerary concepts. Focus the response on the current bona fide position requirement, the real work to be performed, the third party’s requirements where relevant, and correspondence with the LCA.

Why USCIS may issue a third party worksite RFE.

The actual client duties are unclear.

The petitioner may describe one position while the contractual or client evidence suggests materially different work.

The client’s degree requirement is not established.

Where the third party defines the position, USCIS may examine what academic preparation the client actually requires for the work.

The position appears speculative.

The record may not establish that qualifying specialty occupation work will actually be available as of the requested start date.

The LCA does not appear to correspond.

The worksite, occupational classification, wage or described duties may raise questions about whether the certified LCA supports the actual employment.

Use contractual and operational evidence to explain the real position.

Not every case requires the same documents. The response should address the particular factual gap identified by USCIS and avoid burdening the record with irrelevant layers of paperwork.

  • Statements of work, work orders, contracts or other documents identifying the relevant project or services;
  • Client letters or other reliable evidence describing the duties and minimum educational requirements where available;
  • Documentation showing the bona fide position will be available as of the requested start date;
  • Evidence explaining the petitioner’s role in the contractual arrangement and the services it is providing;
  • Project documentation, technical materials or deliverables corroborating the specialty occupation duties;
  • Evidence showing that the LCA location and occupational classification correspond to the actual work;
  • A detailed petitioner letter reconciling any differences among petition, client and contractual evidence; and
  • Evidence addressing any specific inconsistency or missing link identified in the RFE.

Respond under the current rule rather than superseded third party guidance.

Older H-1B adjudications sometimes focused heavily on detailed itineraries and proof of specific assignments throughout the entire requested period. The current regulation expressly states that a petitioner need not establish specific day-to-day assignments for the entire time requested.

That does not eliminate the petitioner’s burden. The response should still prove that a real specialty occupation position exists and make the substantive nature of the work sufficiently clear for USCIS to adjudicate.

Third party evidence can affect approval, validity and later revocation issues.

If USCIS concludes that the position is not bona fide, is not a specialty occupation, or is inconsistent with the petition and LCA, the H-1B petition may be denied.

After approval, material changes in employment can also create amendment or compliance issues. If USCIS later issues a Notice of Intent to Revoke, the original petition, subsequent employment changes and current evidence should be reviewed together.

Primary authorities8 C.F.R. § 214.2(h)(4), including the current bona fide position and documentary evidence provisions; current USCIS Form I-129 instructions.

Related H-1B RFE, revocation and denial issues.

H-1B Specialty Occupation RFEResponding when USCIS questions whether the offered position qualifies as a specialty occupation.H-1B Beneficiary Qualifications RFEResponding when USCIS questions whether the worker is qualified for the specialty occupation.H-1B Degree Requirement RFEResponding when USCIS questions the connection between qualifying degree fields and the job duties.H-1B Maintenance of Status RFEResponding when an extension or amendment raises prior status and employment compliance issues.H-1B Notice of Intent to RevokeReview issues that arise when USCIS proposes revocation of an approved H-1B petition.H-1B DeniedReview options after USCIS denies an H-1B petition.