The US Chamber of Commerce issued a letter urging member of the Senate to oppose the “Employ America Act” (S. 2804) either as stand-alone legislation or as an amendment to other legislation.
The US Chamber of Commerce issued a letter urging member of the Senate to oppose the “Employ America Act” (S. 2804) either as stand-alone legislation or as an amendment to other legislation.
As of June 25, 2010, approximately 23,500 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 10,000 H-1B petitions for aliens with advanced degrees.
Please click below for a copy of the complaint and application for preliminary injunction filed in the D.C. District Court challenging the application of the 1/8/10 Neufeld memorandum.
This is RFE that USCIS is issuing is based on the January 2010 Nuefield Memo regarding the Employer-Employee relationship.
This section relates to H-1B Visa Consultants working In-House at the employer’s office.
If the beneficiary will work on a project at your own location, provide evidence that demonstrates you have sufficient specialty occupation work that is immediately available upon entry into the United States through the entire requested H-1B validity period by providing a combination of the following or similar types of evidence.
This list is not inclusive of all types of evidence that may be submitted. You may submit any evidence you feel will establish sufficient specialty occupation work.
Copy of signed Employment Agreement between you 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, statements of work, work orders, service agreements, and letters between you and the authorized officials of the ultimate end-client companies to whom the end product or services worked on by the beneficiary will be delivered;
Copy of a position description or any other documentation that describes the skills required to perform the job offered, the tools needed to perform the job, the product to be developed or the service to be provided, the method of payment, whether the work to be performed is part of your regular business, the provision of employee benefits, and the tax treatment of the beneficiary by you;
Evidence of sufficient production space and equipment to support the beneficiary’s specialty occupation work.
Copies of critical reviews of your software in trade journals that describes the purpose of the software, its cost, and its ranking among similarly produced software manufacturers;
Proof of your software inventory;
Proof of sufficient warehouse space to store your software inventory;
Copy of the marketing analysis for your final software product;
Copy of the cost analysis for your software product;
Evidence of sufficient production space and equipment to support the production of your software.
| Cap Type | Cap Amount | Cap Eligible Petitions | Petition Target | Date of Last Count |
| H-1B Regular Cap | 65,000 | 13,500 | 4/8/2010 | |
| H-1B Master’s Exemption | 20,000 | 5,600 | 4/8/2010 |
This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.
This is the number of petitions that USCIS projects it will need for the cap to be met.
The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
The new VSC addresses are as follows:
H-1B Cap Cases:
USCIS-VSC
Attn: H-1B Cap
4 Lemnah Drive
St. Albans, VT 05479-0001
H-1B U.S. Master’s Exemption Cases:
USCIS-VSC
ATTN: H-1B U.S. Masters Cap
4 Lemnah Drive
St. Albans, VT 05479-0001
The VSC filing addresses for all other H-1B petitions (including those requesting premium processing service) remain the same as FY 2010. There will be a USCIS press release in the near future clarifying this issue.
Until very recently, Labor Condition Applications (LCA’s) were taking the full 7 days to get approved (Certified). We recently saw this improve to 4 days. Our ETA 9035 petitions filed on 3/15/2010 were certified on 3/19/2010. Let us hope that this processing time keeps improving.
AILA (American Immigration Lawyers Association) wrote a response to the 1/8/10 Neufeld Memo. Please click here to view.
The Helpful Filing Tips provided by the Vermont Service Center (VSC) address how to complete Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement. That section asks:
“Is the beneficiary of this petition a J-1 nonimmigrant alien who received a waiver of the two-year foreign residency requirement described in section 214(l)(1)(B) or (C) of the Act?”
VSC’s Filing Tips indicate that this box should be checked only if the beneficiary is a physician who received a Conrad waiver. This is partially accurate. While it is correct that the exemption does not extend to those who received a J-1 waiver based on a no objection letter, hardship, persecution, or many Interested Government Agency (IGA) waivers, INA §214(l)(1)(B) or (C) is not limited to J-1 waivers based on a recommendation from a State 30 program.
INA §214(l)(1)(B) or (C) describes J-1 waivers granted to physicians who, after completing graduate medical education (GME) in the U.S., make a three year, full time commitment to serve in a qualifying medical shortage area.
In addition to the Conrad 30 program, these waivers may have been recommended by the Veterans Administration, the Delta Regional Authority, the Appalachian Regional Commission, and the U.S. Department of Health and Human Services.
Physicians who have made a three year commitment and receive a J-1 waiver based on the recommendation of any one of these agencies are required to hold H-1B status for three years to fulfill the waiver obligation. H-1B petitions on their behalf are exempt from the cap, and Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement including with the petition should indicate “yes” to this question.
U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.
Click here for a copy of the memorandum.
Questions & Answers
Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?
A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
Q: What factors does USCIS consider when evaluating the employer-employee relationship?
A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?
A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.
Q: What if I cannot submit the evidence listed in the memorandum?
A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.
Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?
A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.
Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.
Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.
Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?
A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.
Q: What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?
A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.
Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?
A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.
Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.
For more information on USCIS and its programs, call 1-800-375-5283.