Tomorrow, May 27th, I will present immigration options for students after leaving the University of California, Davis at 5 pm in 206 Olson Hall. This presentation covers several issues which are of the utmost importance for anyone considering (non-UC Davis) H-1B status in the future, including:
• What are the requirements for H-1B status?
• How far in advance of the expiration of my current status should I consider H-1B sponsorship?
• What is the current situation with H-1B ?numbers? for undergraduate and graduate students?
• What questions should I ask potential employers about their immigration policies with regard to H-1B status and employing foreign nationals?
• What happens to my status if I am laid off from my job while in H-1B status?
• How can I obtain permanent residency? How does permanent residency relate to my H-1B status?
• How do I maintain my F-1/J-1 status if I marry a US citizen and apply for permanent residency?
I have attached the presentation and the handouts for anyone who cannot make the presentation tomorrow. Please also feel free to e-mail me at info at harms-law.com to schedule a one-hour consultation for a nominal fee to design an immigration strategy relevant to your particular situation.
Melissa Harms H-1B Workshop May 2010
H visa
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.
Tags: beneficiary, consultant, consultants, contractor, Donald Neufeld, employee, employer, H-1B, Memo, petitioner, relationship, third party, USCIS
Legal Updates | melissa | 
January 20, 2010 3:22 pm | 
Comments (3)
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!
The recent USA Today article, More of the World’s Talented Workers Opt to Leave USA, describes how the US is losing its best and brightest due to these foreign national’s opportunities at home, but also immigration delays. The CEO of TiE Global, a worldwide network of professionals who promote entrepreneurship, explains, “If the country is going to maintain the kind of economic well-being that we’ve enjoyed for many years, that requires having these incredibly gifted individuals who have been educated and trained by us.”
On an everyday basis, I find my corporate clients exasperated by long delays in visa processing, unfounded requests for evidence on pending applications, and general frustration in the delay and amount of time and money spent on immigration petitions. One high technology client has chosen to relocate research and development activities abroad so it can be assured of choosing the scientists and researchers it needs without the headaches of considering immigration implications with each hiring decision.
Other clients tell me that they will no longer sponsor foreign nationals for work visas due to the headaches involved. This seems to be the answer that many who would have the US close its borders are seeking. However, within a short while, each and every one of these clients has changed this position as they cannot locate a US worker to fill a position which requires higher education in the science, technology, engineering or math fields.
I am in support of creating jobs for US workers, but what many American’s don’t realize is that these innovators are creating jobs. They are developing green energy solutions, creating smaller and smaller electronic devices with more power, and making our cars more fuel efficient. Without these workers, our US COMPANIES would fail. If we want to work on creating more jobs for US workers, let’s turn our attention towards our education system and training our students to compete on a global level rather than turning to the protectionism that will only hurt us in the long run.
Earlier this year, the Department of Labor announced that it was revising the system that handles the labor condition application (LCA) associated with the H-1B petition. Previously, employers (and their attorneys), could submit a Labor Condition Application online and it was immediately processed and certified. The certified LCA must be included with the H-1B application.
The new system, called the iCert portal, now requires that employers register in the system. Attorneys can then create their new subaccounts to submit applications on behalf of the employers. This new system is riddled with problems. Instead of instantaneous approvals, the Department of Labor (DOL) has promised adjudication in 5-7 business days. This adds an additional 1-2 weeks of processing time which is frustrating for employers who hire new candidates and need for them to start working immediately. Further, many of these employers have unmatched federal employer identification numbers (FEIN) which leads to an immediate denial and for the employer to wait while the Department of Labor verifies the FEIN. Lastly, sometimes after waiting 5-7 business days, the application is denied for no apparent reason, forcing the attorney or employer to refile and wait an additional 5-7 days.
Why does the government need to “fix” a system that was never broken? The Department of Labor was originally involved in the immigration system to protect US workers. Instead, it has added one more layer of bureaucracy into an already murky highly nonsensical process. As I’ve said to my clients, you shouldn’t need an attorney to assist you with immigration matters, but you do. This is why.
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