Immigration Visa Attorney Blog

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" »

We have not noticed a change in H-1B review and approval process since the publishing of the Neufeld H1B Memo regarding H-1B visa and employer-employee relationship. We continue to submit our applications in the same fashion. We have always allocated a portion of our petitions addressing the employer employee relation form a traditional common law approach. In a case from Columbus, Ohio we have received a premium processing approval from the Vermont Processing Center in a record 24 hours. While the memo clearly shows certain flaws in USCIS legal analysis, USCIS continues to approve cases provided end client letters evidencing specialty occupation and petitioner right to control are well documented.

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.

In a New York Times op-ed, Thomas Friedman, wrote that America should remember how it became the wealthiest country in history. He says it was not through fearing free trade, state owned banks or protectionism. It was through a flexible open market, adding to it, the most diverse highly intelligent immigrants from all over the world.

Some of our legislators have forgotten the principles that lead to our success. A clear example is a new anti H-1B & H-2B proposed legislation introduced this month by Sen. Bernie Sanders (I-Vt.) and Sen. Charles Grassley (R-Iowa) dubbed as "Employ American Act," which in fact has nothing to do with employing Americans. It basically mandates that if a company lays off more than 50 workers in any area, the company cannot hire any foreign workers for one year and all company foreign workers on visas approved in the preceding 12 months shall be cancelled. The bill also precludes judicial review for any visa cancellation.

This has to top the list of most irresponsible legislation introduced in 2009. To highlight the hasty nature of the introduced legislation, let's consider an example. If this legislation to become law, the practical effect is as follows: If, let's say, Ford lays off workers in a plant in Detroit Michigan, this legislation would prevent Ford form hiring on H-1 B a foreign scientists in its Columbus, Ohio research facility that is working on designing a more efficient engine to compete with its foreign competitors. It further will automatically cancel all recently approved H-1B visas for its entire foreign scientists anywhere in the US. This legislation servers no purpose except to harass companies that hire foreign nationals on H-1B visa. The practical impact of this legislation is that hiring foreign nationals becomes a liability to US corporations.

Sen. Grassley said with the current high unemployment rates (over 10%), companies should give preference to American workers when recruiting. But what he does not say, is that H-1B visas fill job vacancies in high tech areas where American workers are unavailable. It serves no purpose to force companies to cancel visas on difficult to fill positions because it had layoffs in completely unrelated job classifications in a completely different part of the country. This legislation is better dubbed as "Kill American Competiveness ACT"

Continue reading "Killing The H-1B visa Program! Will They Succeed?" »

Despite Canada and the US having a relationship spanning more then two centuries and sharing one of the most successful international relationships, Canada is clearly capitalizing on our failed immigration policies.

On November 28, 2008, the Canadian Government introduced major changes to the Economic Class permanent immigrant category. The Economic Class now includes a Provincial Nominee Program. To qualify for a permanent residence in Canada under the Alberta Provincial Nominee program, U.S. H-1B holders need NOT have a job offer in Canada to obtain residency. The applicant must only be working in the US for one year under the valid non-immigration visa, and must have one year working experience in "a major high demand occupations" . Recent advertisements in major newspapers in the US, goes like: "Alberta, Canada Welcomes H-1B Visa Holders and Their Families. Work Here. Live Here".

This is like a boon to all US H-1B visa holders who have to wait for more than 6 years to get that elusive green card and the security it brings. Why should they live in insecurity in the US, when Canada is offering a better solution? H-1B visa holders in the US are increasingly tired of their temporary status, where their future hangs in the balance as politician argue.

Continue reading "H-1B VISA: One's Loss is Another's Gain" »

At least someone is trying to save one of our most vital immigration visa programs to our sustained scientific and innovative world leadership, the H-1b visa program. A bill introduced by Rep Gabrielle Giffords in March 13, 2008 referred to as the Innovation Employment Act, is getting some attention lately. The Act is an attempt to reform the H1-B visa program. From Columbus, Ohio & Michigan to both coasts, it is the visa that America's highly technical industries rely on to hire highly skilled foreign nationals to work in the United States.

One of the key reform features of the Bill is to increase the current H-1B visa cap from the current 65,000 to 130,000 a year. Additionally there would be no H-1B visa cap on foreign nationals who have studied science, technology and related fields in U.S Colleges. The current H-1B visa cap is 20,000 for US Masters Degree holders in all fields (referred to as the H-1B Advanced Degree Exemption). Another key reform feature is to prohibit companies with more than 50 employees that have more than half of their staff as H-1B workers, from hiring more H-1B workers. The Act also would prohibit employers from advertising jobs as available only to H-1B workers.

The Innovation Employment Act is supported by Microsoft chairman, Bill Gates. He said America provided the world's best universities and yet foreign students were not allowed to stay and work in the country. The legislation would allow access to the best talent available from all over the world. Microsoft believe that the bill would increase U.S jobs; Microsoft hires four local people to support each H-1B worker.

The proposed Act would be a step in the right direction to control outsourcing and keep jobs home. Many proponents believe that the proposed Act can be beneficial to our economy. It keeps foreign talent in the US so they don't leave to competing countries, where jobs follow them. It is no secrete that large companies have relocated some of its operation overseas to seek talent unavailable in the US. Microsoft has moved certain branches to India, Canada & Mexico.

Continue reading "H-1B Legislation Getting Some Attention" »