Wondering how to have an H-1B petition approved without an end client letter? It is possible!
USCIS has recently focused on making sure that a) there is H-1B work for the H-1B employee, and that b) the employer filing the petition is the employer that will ultimately control the H-1B employee’s work. While USCIS certainly has a legitimate interest in combating fraud, this requirement to document that the “end client” will not be the employer has created tremendous headaches for many prospective H-1B employers. Why? Let’s take a look at an example using Sam, a foreign national who is a professional IT consultant.
Sam has a bona fide job offer from Employer A to work as an IT consultant in a professional position, and Sam meets the requirements for the position (meeting the specialty occupation requirements). Employer A has a contract with Company B to provide Sam’s services, and Company B in turn has a contract with Company C. Company C is where Sam will actually perform the work. However, Employer A remains Sam’s employer, and will provide benefits, give performance reviews, pay Sam, withhold taxes as needed, discipline him as needed, etc.
In their quest to make sure that Employer A will ultimately control Sam’s work, USCIS will request documentation, if not submitted with the original petition, to document that Employer A is in fact the employer and has sole rights to control Sam’s work. To document this, Employer A would submit, among other things, a copy of the employment agreement, benefits statement, copy of contract with Company B, and work order or purchase orders, and possibly an “end client letter” from Company B or Company C. Easy enough? The problem is that often Company C and sometimes even Company B will not issue this “end client letter.” The letter, if obtained, would outline the position that Sam would fill, the requirements for the position, the job description, and include a statement that the Company (B or C) is not the employer and that Employer A has the sole and exclusive right to control the employment of Sam. H-1B petitions can be denied for failure to establish that Employer A has the sole right to control the H-1B employee’s work.
Sumner Immigration Law recently had a petition approved with facts similar to those outlined above, except Company C would not issue the end client letter. In this case, we did have a copy of the contract between Employer A (the petitioner) and Company B. Usually this alone would not be sufficient. However, the contract specifically included the name of Company C, and explicitly laid out that Company C would not accept any responsibility as the employer. It included clauses stating that Company C would not pay the employee, would not withhold taxes, that Employer A had the sole and exclusive right to hire, fire, discipline, and give performance reviews to the employee, etc. These clauses were carefully pointed out in the attorney support letter, with clear references to the exact location in the contract. The petition was approved, even without the end client letter.
The lesson from this approval is two-fold:
- It is possible to have an H-1B petition approved without the end client letter, even where there is a third-party worksite involved, and
- It is critical to think outside the box in preparing H-1B petitions (or any type of immigration filings). It may not always be possible to obtain the specific document that USCIS is asking for, or that they typically request. But you must think about why USCIS requests that document, and then think of alternative documents that would still adequately address the issue at hand. Then clearly lay out the explanation for USCIS. This is the job of an experienced and creative immigration lawyer.
Disclaimer: The above information is for educational purposes only. The fact that this petition was approved does not mean that other cases with the same or similar fact patterns will be approved. You must consult with an experience immigration attorney before taking or refraining from taking any action based on the above information.