On January 8, 2010, the USCIS released a memo regarding establishing an employee/employer relationship for H-1B petitions where employees are placed at third party sites. This memo gives guidance to USCIS adjudicators in determining whether a sufficient employer/employee relationship exists as for the Petitioner to qualify as an “employer” under the Immigration and Nationality Act and the Code of Federal Regulations when applying for H-1B status on behalf of its employees.
The memo outlines several types of relationships where the employer/employee relationship exists:
Traditional employment
Temporary/Occasional Off-Site employment (for example, accountants who visit different client sites for audits and the petitioner provides food and lodging costs for the beneficiary who is normally stationed at a centralized office run by the petitioner.)
Long Term/Permanent Off Site employment (for example, architects who are working off-site at a project site where the petitioner provides the instruments and tools for the project and the beneficiary reports to the petitioner, and the underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.)
Long Term Placement at a Third Party Work Site (for example, the petitioner is a computer software development company which has contracted with another company to develop an in-house computer program. The beneficiary will work on the contract at the client site. While the beneficiary is at the site, he reports to the petitioner, and is paid by the petitioner and receives benefits from the petitioner.)
The memo also states that self-employed beneficiaries and independent contractors do not have a sufficient employer/employee relationship for H-1B purposes. Lastly, the memo states that Third Party Placements/ “Job Shops” do not demonstrate the requisite employee/employer relationship. These relationships exist when the petitioner has contracts with numerous outside companies in which it supplies employees to fill specific staffing needs. The specific staffing needs are not outlined in the contract between the petitioner and the third-party company, but are staffed on an as-needed basis. The beneficiary does not report to the petitioner for work assignments and the petitioner does not control how the beneficiary will complete daily tasks.
The USCIS is now going to subject any H-1B application to strict scrutiny to determine if the relationship is analogous to the “Long Term Placement at a Third Party Worksite” situation as described above, which does satisfy the employee/employer test, or whether it is more analogous to the “Job Shop” scenario described above. Therefore, H-1B petitions that do not involve a traditional employment relationship or in which the employee must travel to additional worksites will need to provide the evidence stated below (as appropriate):
A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
Copy of an employment offer letter that clearly describes the nature of the employer/employee relationship and the services to be performed by the beneficiary;
Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
A description of the performance review process; and/or
Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.
Given the increased scrutiny on these H-1B petitions, the Law Office of Melissa Harms will work with employers in these situations to gather the necessary documents and craft legal arguments to ensure the maximum chances of success for H-1B petitioners.
On November 5th, I spoke at the San Francisco Employer Advisory Council about the need for employers to maintain a corporate compliance program that includes aggressive I-9 training for human resource professionals and regular I-9 audits. In light of an increased budget dedicated to worksite enforcement and aggressive pursuit of criminal penalties for employing unlawful workers, employers are well advised to proactively address internal protocols relating to not only the Form I-9, but also immigration policies, social security “no match” letters, and steps to follw in the event of a government audit .
I am developing worksite enforcement resources that will be available on my website shortly under the “Information” tab. Please check back soon!
The US Customs and Immigration Enforcement (ICE) announced yesterday that record numbers of foreign students visited the US last year. The announcement was made in the context of “showcas[ing] the Department of Homeland Security’s (DHS) Open Doors Policy of balancing efforts to secure the nation’s student visa system while preserving the rich tradition of recruiting the best minds from around the world.”
Last month, I spoke at the Regional NAFSA conference in San Diego about options for foreign students to remain in the US after graduation. NAFSA is a association of International Educators, and is comprised mainly of international student advisors and staff who work with our international student population. Although more students are coming to the US to get educated, the possiblities for them to remain in the US and apply the knowledge they gained at our schools are more and more limited. The US needs workable visas for these highly educated students to spur innovation and promote job creation. If not, we’ll soon see other countries assume the role of the technology superpower that the US currently holds.
After presenting to over 100 international students and scholars at University of California, Davis last week, I promised that I would post my powerpoint online. Please bear with the rest of the site as we undergo a website redesign to offer more immigration resources and news. We should have the H-1B and PERM handouts back online shortly.
Please bear with us while our website re-design takes place. We hope to furnish you with more tools and information regarding immigration law once the site is up this week.
In the meantime, our contact information remains the same:
Law Office of Melissa Harms
700 Larkspur Landing Circle, Suite 199
Larkspur, California 94939
Tel: 415.945.9600
Fax: 415.651.9602
email: info at harms-law.com
I am attending the Mill Valley Film Festival tomorrow to watch my client’s latest documentary, A Thousand Suns. This movie A Thousand Suns looks at hunger in Africa, but probes deeper to address the interplay between food, ecology and religion in the 21st century.If you’re in the Bay Area this weekend, check out this film!
The Department of Labor announced that it has recovered more than $1.4 million in back wages for 237 employees employed by a contractor for the US Department of Homeland Security’s US Citizenship and Immigration Services Vermont Service Center at various locations for failing to pay these workers the prevailing wage for their positions.
When sponsoring individuals for H-1B status (the most common work-authorized work visa), the employer has to prove to the Department of Labor and the Department of Homeland Security’s USCIS agency that it is paying the prevailing wage for the position. Therefore, I find it highly ironic that the USCIS will hold employers to a higher standard than it holds its own contractors!
Although the term “rescission of safe-harbor procedures” sounds like a negative, in fact, the Department of Homeland Security’s (DHS) rescission of these safe harbor procedures relieves employers of responsibilities that were onerous and had dubious impact towards meeting the administration’s goal of reducing unauthorized employment.
On August 15, 2007 DHS released the final version of the Immigration and Customs Enforcement (ICE) regulation, “Safe Harbor Procedures for Employers Who Receive a No-Match Letter.” These regulations greatly increased the burden on employers who received a social security “no match” letter or discrepancy notice from DHS to take certain steps or face criminal and civil liability for unlawfully employing individuals without employment authorization.
Unfortunately, this proposed DHS regulation made the law more unclear for many employers. How many no-match letters could they receive and have the employee “fix?” What if the employee brought back something that appeared genuine with a different name? Employees were also caught in the middle. Many employees would be the subject of these letters based on a name change due to marriage, a typographical error or for some other innocuous reason. And forget about having the Social Security Administration (SSA) fix the error in the 90 days prescribed by the regulation. In the lawsuit challenging the rule, the former Secretary of the Social Security Administration stated that it would be close to impossible to get an error fixed in the database and provide an individual with the proof needed to satisfy the regulation within 90 days.
All I can say is good riddance to this “safe harbor.”
On Monday, I met with U.S. Customs and Border Protection (CBP) agents and toured the airport screening process for those entering the United States which included deferred inspection, border checkpoints as well as holding areas for those who were denied entry to the United States. My tour guide took the time to explain his viewpoints on some nebulous areas of the law, including determining when a permanent resident had “abandoned” his or her US residence by remaining outside the United States for too long (another discussion entirely, but suffice it to say, you’re best served to limit your absences to less than six months).
The most important thing I learned from my visit is that courtesy will get you a long way with these officers. Although they are quick to point out that entrants have no right to counsel at the border, they also agreed that if you are courteous, and in secondary inspection proving your admissibility, they will contact your attorney for more information in some circumstances. Courtesy + attorney involvement = admission to the US.
Of some limited comfort, the officers are required to process an entire flight within 59 minutes. This does not include time spent in secondary inspection for those who are detained, but at least our government is setting SOME goals for expeditious processing for foreign nationals (and US citizens when they enter the country). Of special note, there are no special provisions for those with connecting flights, so keep that in mind when connecting through San Francisco to other destinations.
In Washington, two owners of an engine parts company were fined $100,000 for employing workers not authorized to work in the US, as reported by the New York Times. This report illustrates the penalties that the Department of Homeland Security is imposing on employers with illegal workers on the payroll. In 2009, Immigration Customs and Enforcement (ICE) has a $3 billion budget for worksite enforcement actions. In 2008, it made 1103 criminal arrests of people in connection with worksite enforcement, and 5,184 administrative arrests. In light of the risks of criminal fines and arrests, employers should review their Form I-9s to ensure compliance with the immigration laws.
Legal Updates | melissa | 
January 20, 2010 3:22 pm | 
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Please bear with us while our website re-design takes place. We hope to furnish you with more tools and information regarding immigration law once the site is up this week.
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