Immigration Visa Attorney Blog

The United States Citizenship and Immigration Services (USCIS) has been continually threatened with lawsuits ever since the Neufeld Memorandum on Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements was released. On June 8, 2010, precisely six months after the Neufeld Memorandum was released, the first lawsuit was filed against the USCIS, USCIS Director Alejandro Mayorkas, the Department of Homeland Security (DHS), and DHS Secretary Janet Napolitano. Several IT staffing companies and two staffing associations, namely Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association (Plaintiffs), have filed a five count complaint in U.S. District Court for the District of Columbia. In addition, the Plaintiffs have filed a motion seeking a preliminary injunction preventing the agency from enforcing the policies contained in the Neufeld H-1B Memorandum until their claims can be decided by the Court.

The basis for the lawsuit is no secret or surprise. Although IT consulting and other staffing companies have a well-established history of sponsoring and employing H-1B workers, the Neufeld H-1B Memorandum's guidance makes it very difficult, if not impossible, for such companies to be H-1B visa sponsors. In fact, there have been reports that numerous IT consulting companies have closed due to the negative impact the Neufeld H-1B Memorandum has had on their ability to sponsor H-1B professionals. The supposed motivation behind the Neufeld H-1B Memorandum was to prevent staffing companies from sponsoring H-1B workers who were, in turn, hired out to other companies that were abusing or fraudulently using the workers. Unfortunately, the USCIS went so far in its efforts to prevent a small number of staffing companies from committing fraud that its guidance wrongfully prevents virtually all staffing companies from employing H-1B workers altogether.

In the complaint, Plaintiffs are alleging the USCIS has illegally changed the law regarding whether staffing companies have the requisite control over their employees to qualify as H-1B employers. Count one of the complaint claims the USCIS violated the Administrative Procedures Act (APA) by issuing a new rule without following the proper rule-making procedures and seeks to have the memorandum vacated. Count two of the complaint claims a violation of the Regulatory Flexibility Act for failing to analyze the new rule's impact on small businesses. The third, fourth and fifth counts allege the USCIS has exceeded its statutory and regulatory authority, that the memorandum is arbitrary and capricious, and that the memorandum is not authorized by law.

Broadgate, Inc., Logic Planet, Inc., DVR Softek Inc., TechServ Alliance and American Staffing Association have finally done what many groups have been threatening to do since the Neufeld H-1B Memorandum was first issued on January 8, 2010. The immediate motion for a preliminary injunction, if granted, may give staffing and consulting companies some relief in the short term. In the long term, hopefully this challenge will not only be successful in reversing the Neufeld H-1B Memorandum's ill-conceived guidance, but also make the USCIS think twice before hastily issuing new rules without following the proper rule-making procedures.

Our firm has recently learned that, in light of the Neufeld H-1B Memorandum, certain ports of entry are more vigilantly checking the Labor Condition Applications (LCA) of H-1B visa holders. Immigration officers are reviewing the LCAs of H-1B visa holders to confirm the end client work location matches the work location indicated on the LCA. If the end client work location does not match the information on the LCA, immigration officers are finding H-1B visa holders inadmissible. While this procedure may not seem atypical or unjust, it has come to our attention that Customs and Border Protection (CBP) is using LCA inspections as a means of testing the validity of the H-1B employer-employee relationship.

CBP's newly found emphasis on verifying the validity of the employer-employee relationship is undeniably based on the controversial Neufeld H-1B Memorandum on the H-1B Employer-Employee Relationship. In addition to memorandum's conflicting guidance regarding the standard of employer control, the Neufeld H-1B Memorandum has received harsh criticism for unilaterally implementing new immigration laws without following the proper rule-making procedures. In response to these concerns, the United States Customs and Border Protection (CBP) vaguely suggested that it would "take it under advisement." However, the practices is in place at certain ports of entry indicate that the USCIS's controversial memo is finding its way to CBP's screening process as an enforcement tool at certain locations.

By way of example, an H-1B visa holder recently traveled to India and returned through the Newark International Airport in New Jersey. Upon his return from India, the foreign national was going to be working as an IT consultant at a client site in Redmond, Washington. Though an amended LCA was filed with the proper work location, the foreign national did not have a copy of the new LCA. At the inspection point, the foreign national was asked by the CBP officer to produce his current LCA. The H-1B visa holder only had a copy of his previous LCA, which indicated his work locations were Texas and Georgia. The CBP officer informed the H-1B visa holder that his LCA did not demonstrate the proper H-1B relationship with his employer. The CBP officer then stated he should withdraw his H-1B extension application, go back to India and reapply. Even though the foreign national's work location was properly documented in an amended LCA, he was deemed inadmissible for not being able to produce the new LCA at the port of entry.

Despite the controversial nature of the Neufeld H-1B Memorandum, DHS appears to be enforcing the the policies promulgated therein. Unfortunately, until the Neufeld H-1B Memorandum is retracted, H-1B visa holders are required to abide by its contents. To avoid any issues at the border, all H-1B visa holders should be advised to not only file a new LCA for any change in end client work location, but also promptly amend their H-1B petition accordingly. And above all, the H-1B visa holder should be sure to carry documentation that accurately reflects their current employment situation, including copies of their the most recent LCA and H-1B petition with up-to-date work location information.

Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelyhood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area. Arguably, if a foreign national's work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee's work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.

There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL's attention to the case, possibly resulting in supervised recruitment.

A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner's headquarters.

It is important to keep in mind that an employer's obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.

The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ's on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is "not substantially comparable to the position for which certification is being sought." This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as "a job or position requiring performance of the same job duties more than 50 percent of the time." Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Continue reading "Labor Certification Attorney On Experience Acquired With The Same Employer" »

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong. The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong's flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong's restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong's foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) released a guidance memorandum written by Donald Neufeld on "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." This memorandum has left many employers, especially those whose employees work primarily outside of the main office, more confused than ever. They are rightfully asking if there is a sound legal ground that gives USCIS the basis to question whether its employees qualify for H-1B visas. Employer's struggles to understand the need for policy changes if they are headquartered in Michigan, for example, and have employees working Columbus, Ohio. USCIS also appears to struggles defending its ill conceived and legally questionable policy memo it issued last month

Despite the USCIS' February 18, 2010 collaborative session to hear feedback and gather input on the impact of this guidance, there is no guarantee the concerns expressed will be considered or that the guidance memorandum will be revised. Therefore, H-1B employers with "roving employees" should consider implementing, or confirm their business has the following policies in place to ensure their employer-employee relationship meets the "clarified" requirements.

One question, according to the memorandum, that the USCIS adjudicator must ask when assessing the existence of an employer-employee relationship is whether the petitioner evaluates the work-product of the beneficiary. For off-site employees, evaluations and progress reviews may be unconventional or infrequent, but employers should consider implementing a firm and consistent review policy. The H-1B employer should progressively review the foreign national employee's work and conduct an annual evaluation of the employee to establish the requisite control or right to control, as is stressed in the recent guidance memorandum. These progress reviews and evaluations should be adequately documented and maintained in the employee's personnel file.

Further, a USCIS adjudicator will also be looking for evidence of supervisory control over the employee. The USCIS will first look to see if the employee is supervised by the H-1B employer on-site. Supervision on-site by H-1B employers is atypical for roving employees. Accordingly, in the absence of on-site supervision, the USCIS will look for evidence of off-site supervision by the H-1B employer. To adequately establish supervision for off-site employees, employers should schedule and document regular meetings with such employees. These meetings can be accomplished through a combination of weekly calls, reporting back to the main office and site visits by the H-1B employer. Regardless of the method, the meetings should be regularly held and sufficiently recorded. Consult with an experienced immigration attorney to assure that any policy changes are well designed and implemented to help success in future H-1B petitions.

Continue reading "H1-B Immigration Attorney Discusses Needed Changes in Employer Policy In Light Of The Neufeld H-1B Memorandum" »

This is the second of three blogs on USCIS most recent H-1B memo. On January 8, 2010, the United States Citizenship and Immigration Services released a guidance memorandum to assist in clarifying what constitutes a valid employer-employee relationship for H-1B purposes. Though the memorandum likely caused more confusion than clarification due to its internal contradictions and repudiation of established law, the following is an overview of the USCIS' "guidance" regarding employer-employee relationships for H-1B petitions.

The memorandum recognizes that certain employment relationships are sometimes difficult to classify in the classic master-servant context. Therefore, the USCIS developed factors, purportedly based on Supreme Court precedent and common law principles, to assist adjudicators and petitioners in determining if the employment situation involves a legitimate employer-employee relationship. The factors outlined by the USCIS generally pertain to who supervises and evaluates the employee, who provides the tools and instrumentalities needed for employment, who claims the employee for tax purposes and provides compensation/benefits, and who has the ability to control the manner and means in which the work is accomplished.

To illustrate the correct application of the employer-employee relationship factors, the USCIS memorandum further classifies certain employment scenarios as having a valid or invalid employer-employee relationship. Specifically, the following situations are considered permissive employer-employee relationships for H-1B purposes: traditional employment, temporary/occasional off-site employment, long-term/permanent off-site employment, and long-term placement at a third-party worksite. The employment scenarios that, according to the memorandum, do not qualify as a valid employer-employee relationship include self-employment, independent contractors and certain third-party placements or "job shops."

Among other problems, the memorandum attempts to overturn well-settled law regarding the H-1B eligibility of consulting companies and is riddled with internal contradictions regarding whether the legal standard is "actual control" or the "right to control" the employee. The USCIS will undoubtedly face numerous legal challenges to the content of their most recent "guidance," but employers and employees should be aware that they are, nevertheless, bound by it in the meantime.