After that devastating H-1B Neufield Memo of January 08, 2010, today the USCIS had a stakeholder’s meeting for comments on that memo. (For details on this memo, please see my Jan 21 blog). Effectively this memo paralyzed certain types of H-1B cases specially the IT Consulting Services and staffing agencies. The rationale behind the memo is that these parties do not have control over their employees, and thus are not employers in the H-1B context.

The justification cited by the USCIS was that they wanted to maintain consistency of adjudications between the different service centers. After being told though that they have opened a pandora’s box and their memo might be interpreted differently. The Service Center said that every denial will receive “supervisory review.” Lets hope that CIS “CONTROLS” these supervisors.

Congressman Morrison, who wrote the H-1B legislation specifically stated in the meeting that Congress did not intend to exclude staffing companies (and IT consulting Companies) from H-1B jobs and that this memo is wrong and will have devastating policy consequences.

Others including Crystal Williams of AILA pointed out that since both the Supreme Court cases (Darden-Clakcamas) were not on point, and this memo created new rules for employer-employee relationship that it amounted to impermissible rule making by a Governmental agency. By law, an Agency has to publish a rule and have a notice and comment period, and consider all comments before making a rule. Thus this memo should be withdrawn. Interestingly a caller even said that the Darden-Clakcamas cases refer to the EEOC manual, where the IT staffing Companies are used as examples of valid Employer-Employee relationship. Thus the CIS’ citations actually contradict their position. The caller asked whether anyone actulayy read the cases before citing them as authority.

Others made policy statements, like cutting down H-1B jobs will effectively outsource those jobs. Also prohibition of investors will hurt USA in these dire economic times.

Then there were some CIS supporters. There was a PhD from some anti immigration group who said he was a PhD in some type of radio Physics, was out of a job because employers want younger employees. Well, if H-1B was stopped, employers would still hire new grads, only they would be American grads, and those at the bottom of their classes who had no hope of getting another job. Look at the Nobel laureate list for 2010 for USA. All those medals would simply go to other countries.

The CIS did notice that there were numerous blogs criticizing their memo.

The question remains as to what it will take for USCIS to reverse its stance. It took the election of a Republican senator to change the health care debate. The CIS noted that even Capital Hill is commenting about their Jan 08 memo.

This memo according to them took years to make. Even then, the policy making personnel at CIS did not read the entire Supreme Court cases. To undo this memo may take the same time. Maybe their employer, Mr. Obama, should control them tightly against such arbitrary rule making.

Contact Houston Immigration Lawyer, Annie Banerjee for more details

In July of 2010, the CIS decided to use the $500/- fraud fee and conduct sweeping raids of many H-1B sponsoring companies. They conducted a study which revealed that a lot of H-1B Sponsors were not following the rules. The following are some of the criteria that was recently released by ICE as to what factors were used to determine what businesses to raid.

1. Unknown or unusual addresses or email addresses – who determines what is unusual? Are officers familiar with every type of business in America. They then have more brain than Einstein.

2. Skill/age/salary/ education does not match job requirements – If this happens, why not simply deny the petition?

3. No record of correspondence with parent company-This is for L-1 cases, and is understandable.

4. Zoning inconsistent with business – The CIS does not believe that businesses can be conducted from homes, so they frown upon any address that does not look like an office address. I doubt the officers actually look at specific zoning requirements of any subdivision.

5. Unusual data in quarterly reports

6. Labor certification right before sunset of 245i (April 30, 2001)

7. Multiple filings by petitioner is inconsistent with company size – Company’s Size is the big no no for CIS. Small businesses are not allowed to thrive under the democratic rule.

8. Location on ETA 750A or ETA 9035 differs from place of employment

9. No record of providing goods or services

10. Boilerplate documents that are in more than one petition – This can be problematic especially when the Companies file H-1B by themselves and use the same job description for every petition.

As anyone can see a lot of these are subjective criteria, leaving much room for discrimination. Thus overwhelmingly, small Companies are raided rather than big ones. This puts an undue burden on small companies who don’t have resources to fight the Government.

Moreover the officers used in the raids are often new and untrained in the Complexities of Immigration Law. So rather than some job creation, the only purpose of the H-1B raids is to hassle employers and H-1B beneficiaries.

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

If this decade started with a bang for immigration law, it is definitely ending with a whimper. The two influences in immigration law are economy and politics. The decade started with the dot com boom and the signing of the AC-21 bill easing numerous provisions of business immigration law, including the ability to port petitions from different employers, the increase of H-1B numbers to 195,000. Yet even before the ink dried on that bill 9-11 happened, followed by the dot com bust. The H-1B quota, although always filled before the end of the CIS fiscal year, reverted back to the original 65,000; never to be increased again.

The Bush years saw NO immigration bills being passed. We, immigration attorneys did not need to learn any new things, except for a procedure change in the filing of the PERM. The Labor filings got better, best and now its back to being late again. We have traveled a full cycle there.

For the last couple of years the buzz words “comprehensive immigration reforms” created numerous bills all dying on the floors of either the senate or the house. Amongst the earlier ones with promise and somewhat of a bi-partisan support was the McCain-Kennedy. Ted Kennedy has since died, and John McCain unsuccessfully ran for President. Also dead on the floors are the ‘Dream Acts” legalizing college grads who were brought to the United States as little children by their parents illegally. These promising students are illegal through no fault of their own, studied here, went to college here, but cannot work legally.

The economic recession of 2009 saw a rise in anti immigration feelings, along with raids by Government agencies to businesses hiring illegal immigrants. This was followed by the Obama administration on the H-1B raids. Small businesses, the backbone of the American economy is seeing their H-1B petitions denied in record numbers because the CIS believes that employers want to commit fraud. Which small employer can afford to pay $1570/- filing fees for each H-1B employee just to commit fraud?

Can the two parties with their divergent political views ever be able to pass one “comprehensive” immigration bill in the next decade? The Republican with people like
Joe “you lie” Wilson conservatives want to make life harder for illegal immigrants who work as day laborers or gardeners. Amnesty is a bad word for these “religious” right wing conservatives. The Democrats don’t want business immigration, and cracks down on H-1B and other programs. At a debate on immigration Nancy Pelosi wanted to increase further the H-1B filing fees (because the businesses have the ability to pay)to account for the illegal immigrants which are hired by non H-1B employers.

Can these conflicting factions ever come to together and pass a comprehensive immigration bill? Unlike the health care bill the impetus to cut deals with senators to get their vote will not be there, because the bill will benefit a non voting section of society. Hopefully we will have a brave new decade.

Contact Houston Immigration Lawyer, Annie Banerjee for more details.

In a letter to Senator Grassley, the CIS defended their H-1B adjudication practices and their everything under the kitchen sink Request for Evidences.

The CIS is looking into revising the form I-129 to have Petitioner and beneficiary both attest that:

The beneficiary has been advised of the offsite placement and accepts the terms of the H-IB employment, including the job location and possible relocation;

Really? Does anyone working for the software industry not know that they have to work off site. These people are always traveling, the beneficiary KNOWS they have to work off site. Same with Oil Company Engineers. Its the nature of their work. Does CIS seriously think the beneficiary does not know?

2. Placement of the beneficiary offsite during the period of employment will be in compliance with the statutory and regulatory requirements of the H-IB nonimmigrant classification;

3. The beneficiary will be paid the prevailing rate of pay at any offsite
location; and,

This is in line with the question on the I-94 application on the plane, “Are you a terrorist.” Has anyone ever answered yes to that question? Similarly, will anyone filing an H-1B petition ever say they will not comply with the law?

4. The work itinerary is attached.

The H-1B is given for 3 years. It is difficult to predict the itinerary for all those 3 years. If the work itinerary is for less than 3 years, then the employer has to file the whole H-1B again, with the high fees. And even if they have the work itinerary, the job may be canceled, etc. So what is the point of private employers filing job itineraries with the Government?

All of this simply penalizes the small employers who form the backbone of the American economy.

Contact Houston Immigration Lawyer, Annie Banerjee for more details