Personal Message from Michael Hammond

We have just been advised that the USCIS is holding a meeting this Thursday, February 18th, in Washington DC to allow questions and receive input regarding the recent Neufeld Memo. If the staffing model and the use of H-1b workers represents a large portion of your business, I strongly urge you to attend in person. At the very least, I encourage you to attend via phone. I will be attending in person. If you have any questions, please let me know.

Text of the Notice we Received This Afternoon

To: USCIS National Stakeholders
From: U.S. Citizenship & Immigration Services - Office of Public Engagement
Subject: Collaboration Session – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

February 18, 2010 @ 1:00pm EST

Tomich Center, 111 Massachusetts Ave NW

The USCIS Office of Public Engagement invites you to participate in a collaboration session to discuss the implementation of the memo issued on January 8, 2010 which provides guidance on determining if a valid employeremployee relationship exists. A copy of the memorandum is attached along with this invitation.

We are interested in hearing feedback and input on the impact of this guidance and to understand any concerns that stakeholders may have. There are two ways to attend this meeting:

In person – please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov or (202) 272-1213. Be sure to arrive at least 15 minutes early to allow extra time to be processed through security and bring a photo I.D.

Via telephone – call-in information will be provided when you respond. Please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov. We hope you will be able to join in this important discussion.

In a recent USCIS Stakeholders Meeting, AILA asked for clarification on how unused H-1B1s for Singaporean and Chileans are counted back. Under the Chile/Singapore Free Trade Agreement, 6,800 H-1B cases are reserved per cap for specialty occupation cases from Singapore and Chile. The USCIS responded to AILA by stating that unused H-1B1 numbers from a fiscal year will be reallocated for use in the subsequent fiscal year.

For example, the 6,100 unused Chile/Singapore H-1B1s from FY2009 were added back to the 58,200 regular cap numbers available for FY 2010 to get 64,300 regular cap visas available for FY 2010 (this excludes the 20,000 master’s cap exemption).

Thus far, only 129 of the 6,800 H-1B1 cases under the FY 2010 cap have been used. This means that potentially more than 6600 additional H-1B cap cases will be accepted under the FY 2011 cap, which opens in April 1, 2010. Please note, the USCIS did state that although the regular H-1B cap has been closed, they continue to accept reques for H-1B1 visas or change of status cases.

 The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) and we met this week and the hot topic of discussion was the recently released Neufeld memo. There is a strong belief that the memo was issued in violation of the Administrative Procedures Act.  There is also the belief that the memo violates long-standing precedent and established law.  It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter. The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse  specifically dedicated to collecting and posting relevant documents and information on this issue.  This will allow all  interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. contact mfh@hammondlawfirm.com for additional info.

We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of “rogue” behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.

At the annual AILA immigration conference last June, the USCIS promised that a memo would be forthcoming on the issue of  what constitutes an employer-employee relationship for H-1b purposes. On January 13th, the USCIS issued a memo providing guidance on this issue. This memo is especially important to petitioners who place H-1b workers at third-party sites, such as information technology staffing companies and healthcare staffing companies.

The USCIS has long used the test of “right to control� to determine the employer-employee relationship. This memo specifies some factors that USCIS will look at to determine whether the petitioner has the right to control the H-1b beneficiary:

1. Whether the petitioner supervises the beneficiary (off-site or on-site)
2. How supervision is maintained (i.e. weekly calls, reporting back to main office, etc.)
3. Whether the right to control is on a day-to-day basis
4. Whether the petitioner provides tools or equipment needed to perform the duties
5. Whether petitioner has the authority to hire, fire, and pay
6. Whether the petitioner evaluates work-product of the beneficiary
7. Whether the petitioner provides employee benefits
8. Whether the petitioner claims the beneficiary for tax purposes
9. Whether the beneficiary uses any proprietary information of the petitioner
10. Whether the work-product is directly linked to the petitioner’s line of business.

The USCIS acknowledges that no single factor is determinative; rather, the decision will be made on the “totality of the circumstances.â€� Adjudicators  are also encouraged to look at the nature of the petitioner’s business and the beneficiary’s type of work to determine the degree of control present.

The memo is particularly instructive on what type of specific relationships would qualify as meeting the right to control test, and what type of initial evidence to submit to show these relationships exist. Lastly, the memo instructs adjudicators who issue RFE’s on this issue to “specifically state what is at issue� instead of issuing generic, boiler-plate RFE’s. Also, the memo says that adjudicators cannot mandate a specific type of evidence unless it is required by the Regulations.

Clients are encouraged to contact their HLG attorney for more information regarding this issue.

Recently, the USCIS, particularly, the California Service Center has imposed requirements on IT staffing companies employing H-1b workers that are not found in any statute or regulations.  The requirement to produce contracts from parties with which the petitioner has no direct relationship is impossible to meet and the Service Center knows it ! That, is in fact their aim, to be as obstructionist as possible. Instead of applying the statutes passed by Congress and the regulations promulgated through the Administrative Procedures Act and subject to notice and comment i.e. a hearing by the public, they have chosen to arbitrarily act in an uniformed and misguided attempt to “protect the helpless Amercian worker” Kudos to the goal but, the execution gets a resounding “abject failure”.  I happened to have a case recently that represents the idiocy of the Califronia service Center policy.  The Petitioner (Co. A) had a contract with Co. B who had a contract with Co. C (the end client). For those of you who are familiar with the staffing industry, such an arrangement is the norm rather than the exception.  Entire cos. are built on such contrcatual relationships. The CSC demanded the contract between Co. B and C, and my client who has no relationship with Co. C could simply not produce the required contract. Alternative proof, including a letter from Co. C verifying the relationsip and the job description was produced but, ignored by the CSC and the case was denied. I, being filled with righteous indignation, advised my client to file an appeal because surely the appeals unit would look at the evidence with a fair and unbiased eye and approve the petition. Unofrtunately, I told my client that the filing fee for an appeal is $585.00, attorney fees were ridculously exorbidant, and it would take 14-18 months for the case to be heard, and I added, in the interim, the employee could not keep working but, would have to leave the US and wait abroad for a decision. (clearly, the lack of a speedy appeal process and interim work authorization is one of the reasons that the CSC can act with such incredulity. There are simply no repurcussions when they flaunt the law and turn a blind eye to facts and evidenec submitted) My client, being a brilliant business person, had another option. He simply convinced the Co. B and C, the end client to move the project overseas to his development office in Secunderabad, India. Two of the three U.S. workers assigned to the project at the end client were offered the opportunity to transfer to India and when they declined, 3 more off-shore positions were created for Indians abroad.  Way to go California Service Center ! In one failed swoop, you were able to keep an H-1b worker from working in the U.S., paying taxes, renting an apt, buying a car, etc. all horirble things, and at the same time, eliminate the work for 2-3 U.S. workers. I’m sure they appreciated you “protecting” them. But, hey look at the bright side, you made 3 Indians in Secunderabad very happy ’cause they now have a new project to work on.  

As of Dec 8, 2009, the USCIS has accepted 61,500 H-1b petitions toward the FY 2010 cap. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

With the recent announcement from the USCIS that 56,900 H-1b cases have been counted against the FY 2010 cap, there has been wide speculation about when the cap will actually be reached. Will it be a Hanukkah or Christmas present or will we get to ring in a new year with filings still to be done ? There has also been some recent news reports that state the actual cap is 58,200 due to the set-aside of 6,800 visas for the H-1b1 which are Free Trade Act visas issued to natioanls of Chile and Singapore.  Those reports fail to take into consideration that unused numbers from the H-1b1 “spill-over” into the next fiscal year.  Consequently, the calculation is actually 65,000 minus 6,800 plus the balance of the 6,800 from the prior fiscal year equals the actual cap. Although the numbers of unused H-1b1 visas has not been disclosed, the information that has been released indicates very light usage of the H-1b1 visa in FY 2009 and estimates are that in excess of 6,000 H-1ba visas remained which brings us right back to where we started i.e. 65,000.  Breathe a sigh of relief here but, do not delay as the cap will likely be reached very soon. 

As of July 10, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

As evidence of ICE’s new comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce, ICE has announced today a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for I-9 violations and for violations of the Immigration and Nationality Act. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Ohio Butler County Sheriff’s Office which revealed the company had employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.”Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance,” said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. “ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities.”

Last week, ICE announced as part of their new initiative that 652 businesses around the country would be audited to determine their compliance with the immigration laws.