On June 8, 2010, an application for preliminary injunction and complaint was filed by Greenberg Traurig LLP in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.

On June 8, 2010, in the lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, the controversial Neufeld Memorandum of January 8, 2010 – which allegedly clarifies employer-employee relationships within H-1B visa applications in the interests of the United States Citizenship and Immigration Services (USCIS), but in practice has resulted in a preponderance of H-1B denials filed by Information Technology (IT) staffing firms – was challenged in the U.S. District Court for the District of Columbia.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved in a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010, memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

According to the injunction, the Neufeld Memorandum is at odds with the plain language of the relevant statute and its implementing regulations. For instance, The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employers because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

In addition, the rule first introduced in the USCIS Memorandum singles out a particular type of business and, as applied, it precludes that type of business from operating.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

The I-140 Educational and Work Experience equivalency is a good way to have your experience count, and maybe transcend to the lottery-picked visa system.

Lottery-picked employment-based visas go like hotcakes and professional people with aspirations about coming to America can easily be left out.

Ever heard of the I-140 Educational and Work experience equivalency? While immigration is the only niche within the legal arena where quotas are still allowed, it’s common knowledge that employment-based visas, such as the coveted H-1B, aren’t easily obtained by professionals wishing to immigrate to the United States from India and China. These populous nations teeming with qualified professional people get their national quotas filled quickly, resulting in queues to try one’s patience, especially for third preference visas. Second Preference is another option, albeit with caveats.

For instance, your experience must be post-degree and involve a pre-petitioning company. If you have experience in the same job at the petitioning company, this is insufficient because if the employer is able to train the beneficiary, he’d prefer training an American – not you.

If you possess a master’s degree but it’s not from the U.S., the problem of congruence can arise – as your master’s isn’t likely to match your bachelor’s as a credential.

Since evaluations are for advisory purposes only, the USCIS does not have to follow them. In the same vein, work experience can’t be substituted for years in a degree program – as the H-1B allows.
Recommendations by the Nebraska Service Center for Degree equivalency could also be pertinent.
If you do possess a U.S. master’s degree – and if it’s in the field required, no additional documents would be required.

Your 4 year bachelor’s degree + 2 year master’s degree obtained in India will need to be “subbed” by degrees in the same or related fields to equal a U.S. master’s degree.

If you possess a 3 year bachelor’s degree + 1 year postgraduate diploma + 2 year master’s degree obtained in India, to become acceptable for educational preference you’ll require degrees in the same or similar field or a bachelor’s degree + one additional year of education, to measure up. If you have 5 years of progressive experience, this combination could be acceptable as a master’s degree equivalency.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

Lottery-picked employment-based visas go like hotcakes and professional people striving to come to America can easily be left out. But then there’s the Second Preference, albeit with some caveats.

Ever heard of the I-140 Educational and Work experience equivalency? Immigration is the only niche within the legal arena where quotas are still allowed. It is common knowledge that employment-based visas, such as the coveted H-1B, aren’t easily obtained by professionals wishing to immigrate to the United States from India and China. These are populous nations teeming with qualified professional people, and their national quotas get filled quickly resulting in lengthy wait times, especially for third preference visas. So it is only natural that everybody is striving for the Second Preference. Fine and dandy, but there are some caveats.

For instance, your experience must be post-degree and a pre-Petitioning Company. You say that you have experience in the same job at the petitioning company? This isn’t enough because if the employer is able to train the beneficiary, he’d prefer training an American – not you.

Oh, you have a Master’s Degree? If it’s not from the U.S., the problem of congruence can arise – as your Masters isn’t likely to match your Bachelors as a credential.

Did you know that evaluations are for advisory purposes only, and that the USCIS does not have to follow them? In the same vein, work experience can’t be substituted for years in a degree program – as the H-1B allows.

Recommendations by the Nebraska Service Center for Degree equivalency could also be pertinent.

If you do possess a U.S. master’s degree – if it’s in the field required, no additional documents would be required.

Your 4 year bachelor’s degree + 2 year master’s degree obtained in India with need to be “subbed” by degrees in the same or related fields to equal a U.S. master’s degree.

If you possess a 3 year bachelor’s degree + 1 year postgraduate diploma + 2 year master’s degree obtained in India, to become acceptable for educational preference you’ll require degrees in the same or similar field or a bachelor’s degree + one additional year of education, to measure up. If you have 5 years of progressive experience, this combination could be acceptable as a master’s degree equivalency.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

In the Computer Consulting business a company (Lets say Company A) might place an employee with one vendor (Lest say Vendor B) and the company itself may not have a contract with the end user. (Let say Enduser C) However, according to Citizenship and Immigration Service the Company A cannot be a sponsor for that beneficiary’s H-1B visa.

The regulations say that “a United States employer” can file for H-1B for the beneficiary. The Citizenship and Immigration Service looks to Common Law to determine the “Employer-Employee Relationship” whereby the employer has to have CONTROL of the Employee. If Company A does not have the contract with End user C, then Company A cannot control the work product of the beneficiary. Enduser C, at whose premises Beneficiary will work, has no dealing with Employer A, but goes through Vendor B. In this scenario, Vendor B has to be the sponsor.

Control depends on a combination of factors listed below, but the control has to be Actual Control. So Employer A not only should have the right to hire, fire and pay the employee, but also to supervise the employee. In the scenario above Vendor B is liable to Enduser C for the work quality. Enduser C will hold Vendor B liable if anything goes wrong. Company A cannot enter the premises of Enduser C to check how the employee is working. Company A must have the right to control WHEN, WHERE and HOW the employee will work, and cannot do that, simply because there is no contractual relationship between Company A and Enduser C.

The Citizenship and Immigration Service look into the totality of the following factors in deciding whether the employee-employer relationship exists in an H-1B situation:

1. Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2. If the supervision is off-site, how does the petitioner maintain such supervision, weekly calls, reporting back to main office routine, or site visits by the petitioner?
3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4. Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5. Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
6. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
7. Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
8. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
9. Does the petitioner hire, pay, and have the ability to fire the beneficiary?
10. Does the petitioner claim the beneficiary for tax purposes?
11. Does the petitioner provide the beneficiary any type of employee benefits

However simply complying with the last three things above is not enough.

These rules were established by Common Law, invented at a time when the only ‘professions’ were probably priests. There were few if any universities. Why would the modern employer have to “Control” someone with a Bachelor’s Degree, and in some cases does the employer even have the education and ability to “control” the beneficiary in the 21st Century? Unfortunately immigration law is filled with archaic laws which a vastly divided Congress does not even care to address. But businesses and America’s ability to compete in this global world suffers.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

In a number of recent cases the DOL has proved again that it values form over matter. It has set up rigid rules and follows the rules rather than understanding the rationale behind it. Thus it runs contrary to the philosophy of Common Law, which gave birth to our legal system. By taking out reasonableness and a humane case by case approach, the labor certification process has been reduced to at best a farce, and at worst hurting both American employers and American labor force.

The rules dictate that the PERM application be filed within 180 days of the first advertisement. In Matter of Spires Restaurant, The Board Of Alien Labor Certification Appeals (BALCA) ruled that the PERM application filed 187 days later will be denied. The 180 days is meant to be a current test of the labor market, and anything more than 180 days would be considered too old. But 7 days is de minimis and penalizing an employer for just seven days is ridiculous. There should not be a hard line rule, and each application should be judged on a reasonable standard in a case by case basis.

In another case, the DOL rules that the prevailing wage request exceeded the job requirement mentioned in the PERM form. If anything, that would generate a higher Prevailing Wage. The DOL, whose job it is to see that Americans get the job before it is given to aliens, should not mind if the employer posts a higher wage than is required for the position. In The Matter of Florida Restaurant group, LLC

The last one is equally inane. In The matter of EDWARD J. TIERNEY the position was that of a DOMESTIC worker. This was a family. The DOL required a FEIN number instead of a Social Security Number. I wonder if the family of Bill Carlson has a FEIN, and if it does, what type of business do they conduct? With all his contacts at DOL, I would not be surprised.

Of course, the DOL continues to advocate publishing in major Sunday newspapers. That really is a good thing for Employers seeking to hire Aliens. No one reads those anymore, and in a matter of time, the only major newspapers will only exist in NYC and LA areas. The rest of the country will be left with community newspapers. But the DOL will not change!

We have now a ton of personnel working at Foreign Labor division of the DOL. These people will never loose their job. Why then are they doing the work that a computer system will do just as well. I say, replace them, from Bill Carlson down to the lowest level with ROBOTS. Lets use that money for health care instead.

Contact Houston Immigration Lawyer, Annie Banerjee for more details