AILA (American Immigration Lawyers Association) wrote a response to the 1/8/10 Neufeld Memo. Please click here to view.
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.
H-1B FY 2010 Quota – Filled on December 21, 2009:
The H1B cap for FY 2010 was reached on December 21, 2009. The USCIS made the final FY10 cap announcement on December 22, 2009. This announcement states that sufficient cases were filed to meet the cap as of December 21, 2009. Any cap-subject cases filed after December 21, 2009 will be returned to the filer.
An unspecified number of the December 21, 2009 filings will also be rejected (returned to the filer). The USCIS will conduct a random lottery of the cases filed on December 21st, since there are not enough cap numbers for all cases filed as of that date. This marks the end of the FY 2010 H1B cap filings, which began on April 1, 2009.
H-1B Cap petiitons may now be prepared for the FY 2011 first day of filing on April 1, 2010.
We provide this information so our viewers can see the actual processing times that we are experiencing:
Case Type: H-1B & H-4 Renewal
Job Title: Engineering Analyst
Date Filed: 09/30/2009
Date Approved: 11/25/2009
Date Received: 12/2/2009
Work Location: Bloomington, IL
USCIS Service Center: California
USCIS Case #: WAC-09-256-51457
Case Type: H-1B (Premium Processing)
Job Title: Network Administrator
Date Filed: 11/17/2009
Date Approved: 11/25/2009
Date Received: 12/2/2009
Work Location: New York, NY
USCIS Service Center: Vermont
USCIS Case #: EAC-10-032-50988
Increased verification of compliance on H-1B employers by the USCIS Fraud Detection and National Security (FDNS)
USCIS is giving heightened scrutiny to H1B applications, with a greater role for the Fraud Detection and National Security division (FDNS).
In 2005 Congress imposed a $500 Fraud Prevention and Detection Fee that H1B and L visa applicants must pay when seeking their initial visas.
Senator Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) introduced the H1B and L1 Visa Reform Act on April 23, 2009.
The bill is currently in the initial stages of the legislative process. It is being reviewed by the Senate Judiciary Committee.
Here are some of the key points of the proposed bill:
For Employers Hiring H1B employees:
Employers must pay the highest median average wage for all workers in a given occupational classification at a given skill level, with wages determined by the latest occupational employment statistics survey.
Employers must post a detailed job opening on the Department of Labor’s website for at least 30 calendar days before hiring an H1B applicant to fill that position.
Employers should not have displaced and will not displace a US worker within the period beginning 180 days before and 180 days after the date of filing of any visa petition. This lengthens the current displacement clause which currently is 90 days before and after. Unlike the current displacement clause, the new displacement clause will apply to ALL employers and not just H1B-dependent employers.
Companies of greater than 50 employees will be forbidden to have H1B and L1 employees exceeding 50 % of the firm’s total employees.
Employers must submit W2 Tax statement for each H1B applicant.
The Secretary of Labor must establish a searchable website for posting H1B positions. The site must be operational and online within 90 days of the passage of the new law.
H1B Employees working as consultants at Client offices:
By striking clause (ii) of sub-paragraph (E) of the section 212(n)(1), and then adding the new clauses under (F), the bill Prohibits placement of H1B employees on another employer’s site.
H1B employees cannot be placed at a client site unless a waiver is obtained, which will mean every consulting services company will need to obtain a waiver in order to do business.
Allowable waiver conditions include:
(I) the employer with whom the H1B non-immigrant would be placed has not displaced, and does not intend to displace, a United States worker employed by the employer within the period beginning 180 days before and ending 180 days after the date of the placement of the non-immigrant with the employer;
(II) the H1B non-immigrant will not be controlled and supervised principally by the employer with whom the H1B non-immigrant would be placed; and
(III) the placement of the H1B non-immigrant is not essentially an arrangement to provide labor for hire for the employer with whom the H1B non-immigrant will be placed.
In order to take advantage of the waivers, consulting companies have to insure the client did not displace US workers before and after 180 days from the start of every new assignment.
Investigation of Fraud:
Discriminatory advertisements, such as “Position specified is available only to H1B candidates” or “H1B’s will receive priority”, will be explicitly prohibited.
If the secretary’s review of an application identifies clear indicators of fraud or misrepresentation or when a complaint is filed against the employer for failing to meet any of the conditions, then an investigation will be conducted.
Annual audits will be conducted of not less than 1 percent of employers of H1Bs . Additional compliance audits will be conducted of each employer with more than 100 employees who work in the US, if more than 15 percent of such employees are H1B non-immigrants.
If any violations are found then Secretary of Homeland Security will be notified. A penalty of $2000 per violation (increased from $1000) may be imposed.
Employers requiring H1B non-immigrant pay a penalty for ceasing employment prior to a date agreed or employers failing offer benefits to H1B workers such as health, life, disability and other insurance plans in accordance to the same criteria as offered to US workers will be considered to have broken the law and will be fined.
No notice of an investigation will be provided to H1B employers if the Secretary of Labor determines that giving employer a chance to respond to the allegations would interfere with an investigation. The Secretary is not subject to judicial review under this clause.
USCIS shall provide the Secretary of Labor with any information contained in the application as part of the adjudication process that indicates violation of the H1B visa program.
Stricter Required Wages with Minimum Level 2 Wages in Most Cases
The wage requirements would be modified to prohibit paying less than the skill level two wages based on the Occupational Employment Statistics (OES) survey in most cases.
Miscellaneous Provisions:
Employer must provide employees any paperwork (original or certified copy of the original) exchanged with Federal agencies no later than 21 business days after receiving a written request from current or former employee.
L1 Changes:
L-1 Outsourcing Prohibitions
If this proposed bill is passed into law, companies would be prohibited from employing specialized knowledge L-1 beneficiaries for more than one year if they are primarily stationed at a worksite other than the petitioning employer’s location. This requirement could be waived, under waiver provisions that mirror the waiver provisions for outsourced H1B employees, explained above.
L-1 Wage Provisions
The bill would add prevailing wage requirements to the L-1 petition.
Enforcement Provisions for L-1 Employers
The bill would require the DHS Inspector General to submit a report to Congress within six months of the passage of the bill on the use of L-1 blanket petitions to determine whether the current review process provides adequate safeguards against fraud and abuse.
On a May 8, 2009 teleconference with stakeholders, DOL advised that a recent update to iCERT remedied some of the prior issues that had been reported (e.g. Certified LCAs now have validity dates and signature, NAICS button now allows for scroll down). DOL is currently working on a number of other issues.
OFLC will keep the old LCA system operational through June 30, 2009 to give all users sufficient time to fully transition to the new iCert system.
Users are encouraged to familiarize themselves with the iCert system as quickly as possible to allow adequate time to establish accounts and file LCAs using the new ETA-9035.
USCIS’s National Security and Records Verification Directorate (NSRV) and the Office of Fraud Detection and National Security (FDNS) released the H1B Benefit Fraud & Compliance Assessment. This report identifies fraud and technical violations in the H-1B visa program, and identifies areas of potential change in the future by USCIS.
The FDNS selected a random sample of 246 cases from a group of H1B petitions filed between October 1, 2005 and March 31, 2006.
The sample was limited to H1B cases with beneficiaries in the U.S., so that key issues of payment of wages, location of employment, and performance of stated job duties could be reviewed.
FDNS conducted initial reviews of the Labor Condition Applications (LCAs) and H1B petitions and conducted employer site visits. The site visits were intended to verify details about the employer, employee, and the nature of the employment.
246 H1B petitions were sampled, 51 petitions were confirmed to involve either fraud or technical violation’s. 13% involved fraud (33 cases) and 7% involved one or more technical violations (18 cases), for a combined violation rate of 20%.
Technical violations are errors, omissions, and failures to comply that are not within the fraud definition.
Technical violations included:
Fraud is defined as a willful misrepresentation, falsification, or omission of a material fact.
Fraud in LCAs and H1B petitions included:
Based on BFCA findings, the USCIS is making procedural changes to the H1B program that will be released in the future. We will post updates once they are released.
It is important to note the majority (80%) of H-1B petitions are violation free. In addition, technical violations can be overcome through legal guidance and establishing proper compliance systems.
We strongly encourage diligent compliance with LCA and H-1B regulations. We advise employers in developing and maintaining H-1B and LCA compliance plans.