Third-Party Placement and the End-Client Documentation
A staffing arrangement does not change who employs the worker, but it changes what the sponsor must be able to show. The itinerary, the contract chain and the end-client statement each answer a different question, and a missing one is rarely cured by the others.
The rule in short
A petition covering services in more than one location must include an itinerary showing the dates and places of the intended work. Where the worker sits at a customer site, the sponsor must also hold the agreements linking itself to that customer, evidence that it retains the right to control the work, a certified application covering the location, and proof that notice was posted there before placement began.
A petition for services performed in more than one location must include an itinerary. That is the starting rule, and it is the one most often skipped by sponsors who assume the customer contract speaks for itself. The itinerary states the dates and the places of the intended work. Everything else in a placement file exists to corroborate it.
The itinerary and what it must say
The requirement is short and literal: where services will be performed in more than one location, the petition must be accompanied by an itinerary with the dates and locations of the services. It is not a schedule of billable hours and it is not a project plan. It is a list of addresses and periods.
Two errors recur. The first is an itinerary that names a city without an address, which cannot be matched against a posted notice or a wage determination. The second is an itinerary that covers a shorter span than the petition, leaving a gap in which no location is identified at all. Both invite a request for evidence, and both are avoidable at drafting.
The certified application follows the worksite
A labor condition application covers the places of employment listed on it. Placing a worker at a customer site inside the same area of intended employment does not require a new application, but it does require a new notice posted at that site before the placement starts. Placing a worker outside the area requires a certified application for the new location first.
The prevailing wage is set by area, so an application certified for one metropolitan area may state a rate below the obligation in another. Sponsors that move staff between customer accounts should treat every move as a wage question before treating it as a logistics question. The mechanics of the wage figure are set out under prevailing wage determinations and the four wage levels.
| Document | What it establishes | Where it is kept | Common weakness |
|---|---|---|---|
| Itinerary | Dates and addresses of the intended work | Petition file | City named without a street address |
| Master service agreement | The commercial relationship in the vendor chain | Petition file | Signed by an intermediary, not the end client |
| Statement of work | The duties, the deliverables and the term | Petition file | Describes a project, not a position |
| End-client letter | The address, duration and reporting line | Petition file | Customer policy forbids issuing one |
| Posted notice | Disclosure to workers at that site | Public access file | Posted at the sponsor's office only |
Proving the employment relationship
The sponsor must be the employer, and where a customer directs the daily work that proposition needs evidence. The factors examined are ordinary common-law factors: who pays the wage and issues the tax form, who may hire and discharge, who supplies equipment, who sets performance objectives, who conducts appraisals and who owns the work product.
A sponsor with an account manager who reviews deliverables, a written appraisal cycle that runs regardless of the customer's own review, and a contract reserving the right to reassign the worker has a strong file. A sponsor whose only contact with the worker is payroll has a weak one, whatever the contracts say.
Vendor layers are the usual defect. A sponsor holds an agreement with a prime vendor, the prime vendor holds one with an integrator, and the integrator holds one with the customer. The sponsor can produce only the first link. Where the chain cannot be shown end to end, the itinerary is unsupported and the placement address is, on the record, an assertion. Ask for the downstream agreements at contracting, when there is still leverage to get them.
Short-term placement and its limits
A narrow allowance permits placement in an area not covered by a certified application, for a limited number of workdays in a year, per worker and per area. The allowance extends further where the worker keeps a permanent office or workstation at the covered location, spends a substantial part of the time there, and maintains a residence in that area.
The allowance is not free. During the placement the sponsor pays the actual cost of lodging for workdays and non-workdays, and the actual cost of travel, meals and incidentals for both. It cannot be used where a certified application already exists for that occupation in that area, and it cannot be used to place a worker where a strike or lockout is under way. Exceeding the workday limit converts the placement into an uncovered worksite for the entire period.
Assembling the file before it is demanded
Placement files are built at contracting or not at all. The practical checklist is short: the executed agreements for every link in the chain, the statement of work naming duties and term, the itinerary matching those addresses and dates, the certified application covering each area, dated proof of the notice at each site, and the wage documentation supporting the rate at each location. Where a placement crosses an area line, a new application and often an amended petition are required, and the threshold is described under material change and when a new filing is required.
Two habits carry most of the weight. Date-stamp the notice photograph at the customer site on the day it goes up. Re-paper the file whenever the engagement is extended or the address changes, because an extension request that contradicts the original itinerary is a fresh problem, not a continuation of the old one. Sponsors running many concurrent placements usually give the account to a single owner and have H-1B compliance counsel review the template agreements once a cycle, which is cheaper than reconstructing a chain after the customer has moved on.
The same documentary logic governs other regulated intermediary arrangements. A sponsor that understands why limitations on subcontracting turn on who actually performs the work, or why freight broker duties and double brokering are policed through the contract chain, will recognize the shape of the problem here.
Points to carry away
- An itinerary of dates and locations is required whenever services will be performed in more than one location.
- A certified application must cover each place of employment before the worker is placed there.
- Notice of the filing must be posted at the third-party site, not only at the sponsor's own office.
- The sponsor must be able to show it retains the right to control the manner and means of the work.
- Short-term placement outside a covered area is limited by workday counts and requires the sponsor to pay lodging and travel costs.
- Contracts, statements of work and end-client letters are held with the petition file rather than in the public access file.
Questions readers ask
Is a letter from the customer always required?
No regulation names an end-client letter as a required exhibit. What the regulation requires is an itinerary and evidence that the petitioner is the employer. In practice the customer letter is the most direct evidence of what work the worker will do, for how long and at which address, and its absence usually means the record has to be assembled from contracts and statements of work instead. Where a customer refuses to sign one, the vendor agreements and purchase orders must carry the weight.
Does the worker's supervisor at the customer site create an employment relationship?
Day-to-day direction by customer staff does not by itself transfer the employer relationship, but it weakens the sponsor's evidence. The factors examined include who pays the wage, who may hire and fire, who supplies the tools, who evaluates performance and who controls the work product. A sponsor that never reviews the worker's output, never conducts an appraisal and has no technical manager on the account has little to point to beyond the paycheck.
What happens when the customer engagement ends earlier than expected?
The wage obligation continues. An ended engagement is a lack of assigned work, which is a condition related to employment, so the worker must be paid at the rate stated on the application until the employment relationship is genuinely terminated. Terminating it requires notifying the immigration agency that the petition is withdrawn, withdrawing the application, and offering return transportation where the worker is abroad-based. Removing the worker from payroll on the last billable day is not enough.
Sources
- eCFR — 8 CFR 214.2, Special requirements for admission of nonimmigrantsThe petition requirements, including the itinerary for services in more than one location.
- eCFR — 20 CFR 655.734, Notice of the filingRequires notice at each place of employment, including a site the sponsor does not control.
- eCFR — 20 CFR 655.735, Short-term placementSets the workday limits and the lodging and travel costs the employer must bear.
- eCFR — 20 CFR 655.731, The wage requirementConfirms the wage runs through periods of nonproductive status related to employment.
- USCIS — Form I-129, Petition for a Nonimmigrant WorkerThe petition, its supplements and the evidence the instructions call for.
- USCIS Policy Manual — Volume 2, Part H, Specialty Occupation WorkersThe agency's own treatment of the employment relationship and placement evidence.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Immigration Sponsorship
Withdrawing and Refiling a Labor Certification
Requests to modify an Application for Permanent Employment Certification are not accepted once it is filed. An employer that needs a different job title, wage, worksite or requirement must withdraw and refile. Withdrawal does not erase an audit notification already issued, does not preserve the priority date, and does not extend the validity of recruitment beyond the windows the regulation sets. The refiled case is new in every respect except the retention duty, which attaches to both.
Tentative Nonconfirmations and the Right to Contest
When an electronic verification case returns a mismatch, the employer notifies the employee privately, provides the written further action notice, and lets the employee decide whether to contest. If the employee contests, the employer refers the case and hands over the confirmation stating the employee's deadline. Throughout, the employer may not terminate, suspend, reduce hours, withhold pay or training, or delay a start date. Only a final nonconfirmation permits action.
Successor Employers and the Records They Inherit
A buyer acquiring a workforce chooses between adopting the seller's employment verification forms and completing new ones, and adopting them means inheriting their defects. Wage attestations pass to a successor only where it assumes the predecessor's obligations in a sworn statement placed in each public access file. An approved labor certification and its priority date may follow a successor that assumed the predecessor's rights and assets. Program enrollment does not transfer to a new entity.