Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?
A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
It is good to know that the failure to submit direct document from the end client will not be fatal now to an H-1B petition (in the past USCIS denied cases because of that). It is often times very difficult to obtain such a letter from the end client, especially when there are multi-party arrangements between the end client and company. Moreover, the end client may not want to be involved in any way in the visa petitioning process. The revised Q & A states that the petitioner “may submit a combination of any documents to establish, by a preponderance of the evidence, that the required [employer-employee] relationship will exist.”
In the answer to Question 13, USCIS states that a consulting or staffing company can still demonstrate through the preponderance of the evidence that it has the right to control the work of the beneficiary, even though they may be working at a third party client site. Examples of such control include conducting performance reviews, training and counseling for the beneficiary. It is a bit encouraging that this guidance provides a few examples that are indicative of “the right to control.” So as long as the ultimate supervision of the beneficiary is at the hands of the H-1B petitioner, the absence of day-to-day review will not be fatal.
Tuesday, March 20, 2012
Friday, March 16, 2012
USCIS REVISES FAQ ON H-1B EMPLOYER EMPLOYEE RELATIONSHIP
Earlier this week USCIS issued revised guidance in the FAQs online on employer-employee relationship in the H-1B context.
Nothing new, the Neufeld memo is unfortunately still the controlling document in this sad state of affairs from USCIS.
The biggest change was Q13:
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
The FAQ is available at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
Nothing new, the Neufeld memo is unfortunately still the controlling document in this sad state of affairs from USCIS.
The biggest change was Q13:
Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?
A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.
The FAQ is available at:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
Tuesday, February 28, 2012
NFAP POLICY BRIEF FINDS HIGH DENIAL RATES FOR L-1 AND H-1B PETITIONS BY USCIS
The National Foundation for American Policy (NFAP) just issued a policy brief analyzing the government’s data which reveals that USCIS, our immigration agency, dramatically increased the denial rate of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States.
This report is alarming and confirms what us immigration law practitioners have experienced in the past few years. It proves that USCIS adjudicators have artificially and arbitrarily increased the number of denials and time-consuming requests for additional evidence from employers, keeping more highly skilled professional workers outside the United States despite no change in law or regulations.
The visa that received the most scrutiny by USCIS is the L-1B visa used by international companies to bring their specialized knowledge workers. In FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, which means USCIS denied or delayed between 63 percent to 90 percent of all L-1B petitions during that time. Compared with only a 7 percent denial rate in FY2007, and only a 2 percent cases where USCIS requested additional evidence in FY2004, combined with the fact that employers now are much more selective about who they sponsor for this visa, this is a deliberate effort of USCIS to limit the use of this visa and it directly hurts international businesses because it is costing them millions in project delays and penalties.
The report stated that denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011. For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for request for additional evidence for H-1B petitions was 26 percent.
It is alarming that almost a third of the H-1B visa cases are significantly delayed or denied by USCIS and employers are burdened with significant costs to respond to them and delay their projects. There is no logical reason why companies that are now more selective in hiring professional workers should face such advanced scrutiny where there is now more than twice the chance the application will be denied compared to prior years.
The L-1A visa is used by international companies to transfer managers and executives into the United States. Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. The Request for Evidence rate for L-1A petitions increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.
The fact that during the most recent fiscal year, USCIS arbitrarily increased the denial rate or delay rate to half of the cases filed in this category of international managers or executives is outrageous. These are people we want to welcome to this country because they work for multinational corporations that make significant investments in the United States. They will not continue to do that if they will not be able to transfer their managers or executives from abroad to oversee expansion and similar projects.
The denial rates also increased for O-1A petitions, which are used for people with an extraordinary ability, who are in the top of their fields in the sciences, education, business, or athletics. Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011. For O-1A petitions, the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011.
This deliberate effort of USCIS to create additional hurdles on the O-1 visa applicants, who are the best and brightest in the world in what they do, is more than just bad for business. It is even worse for extraordinary researchers and scientists who are supposed to help us find cure to diseases or find the next new technology out there to solve many of our problems. These are the people the United States needs to attract and welcome with less hurdles, not more. Instead, the immigration agency is creating additional barriers to their entering the country by artificially increasing the heightened scrutiny and denial rates.
The best thing the immigration service can do is to make the process easier for all these professionals and companies because they are the kind of people we want to attract here and they represent the interests of billions of dollars in investments in this country. If USCIS wants to help create jobs, it needs to remove barriers to entry of the best and brightest, not create additional obstacles as it currently does. I think more employers now are willing to sue the government in order to protect their rights. We have helped a number of them do that successfully so there are options but they are more costly and difficult.
To read the NFAP report, go to: http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L1_and_H%201B_Petitions.February2012.pdf
This report is alarming and confirms what us immigration law practitioners have experienced in the past few years. It proves that USCIS adjudicators have artificially and arbitrarily increased the number of denials and time-consuming requests for additional evidence from employers, keeping more highly skilled professional workers outside the United States despite no change in law or regulations.
The visa that received the most scrutiny by USCIS is the L-1B visa used by international companies to bring their specialized knowledge workers. In FY 2011 63 percent of all L-1B petitions received a Request for Evidence and 27 percent were issued a denial, which means USCIS denied or delayed between 63 percent to 90 percent of all L-1B petitions during that time. Compared with only a 7 percent denial rate in FY2007, and only a 2 percent cases where USCIS requested additional evidence in FY2004, combined with the fact that employers now are much more selective about who they sponsor for this visa, this is a deliberate effort of USCIS to limit the use of this visa and it directly hurts international businesses because it is costing them millions in project delays and penalties.
The report stated that denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011. For H-1B petitions, the Request for Evidence rate rose from 4 percent in FY 2004, to 18 percent by FY 2007, to a high of 35 percent in FY 2009. In FY 2011, the rate for request for additional evidence for H-1B petitions was 26 percent.
It is alarming that almost a third of the H-1B visa cases are significantly delayed or denied by USCIS and employers are burdened with significant costs to respond to them and delay their projects. There is no logical reason why companies that are now more selective in hiring professional workers should face such advanced scrutiny where there is now more than twice the chance the application will be denied compared to prior years.
The L-1A visa is used by international companies to transfer managers and executives into the United States. Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. The Request for Evidence rate for L-1A petitions increased from 4 percent in FY 2004, to 24 percent in FY 2007, up to 51 percent in FY 2011.
The fact that during the most recent fiscal year, USCIS arbitrarily increased the denial rate or delay rate to half of the cases filed in this category of international managers or executives is outrageous. These are people we want to welcome to this country because they work for multinational corporations that make significant investments in the United States. They will not continue to do that if they will not be able to transfer their managers or executives from abroad to oversee expansion and similar projects.
The denial rates also increased for O-1A petitions, which are used for people with an extraordinary ability, who are in the top of their fields in the sciences, education, business, or athletics. Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011. For O-1A petitions, the Request for Evidence rate increased from 1 percent in FY 2004, to 13 percent in FY 2007, and then more than doubled to 28 percent in FY 2009, 30 percent in FY 2010, and 27 percent in FY 2011.
This deliberate effort of USCIS to create additional hurdles on the O-1 visa applicants, who are the best and brightest in the world in what they do, is more than just bad for business. It is even worse for extraordinary researchers and scientists who are supposed to help us find cure to diseases or find the next new technology out there to solve many of our problems. These are the people the United States needs to attract and welcome with less hurdles, not more. Instead, the immigration agency is creating additional barriers to their entering the country by artificially increasing the heightened scrutiny and denial rates.
The best thing the immigration service can do is to make the process easier for all these professionals and companies because they are the kind of people we want to attract here and they represent the interests of billions of dollars in investments in this country. If USCIS wants to help create jobs, it needs to remove barriers to entry of the best and brightest, not create additional obstacles as it currently does. I think more employers now are willing to sue the government in order to protect their rights. We have helped a number of them do that successfully so there are options but they are more costly and difficult.
To read the NFAP report, go to: http://www.nfap.com/pdf/NFAP_Policy_Brief.USCIS_and_Denial_Rates_of_L1_and_H%201B_Petitions.February2012.pdf
Tuesday, February 21, 2012
H-1B VISAS FOR FY2013
H-1B season is here again with new petitions for FY2013 (based on the government's fiscal year of 10/1/2012-9/30/2013). Employers who wish to file for their employees now prepare petitions for cap-subject applicants to start on 10/1/2012. USCIS will start accepting these applications on April 2, 2012 (because April 1st falls on a Saturday).
Even though the petitions can be filed in April, the actual start date cannot be sooner than October 1, 2012, the beginning of fiscal year 2013, unless certain conditions are met (For example a student in valid OPT status can continue to work throughout 10/1/2012 when a change of status request is approved).
USCIS changed its mind and decided not to go forward with the proposed advance registration rule of employers prior to filing H-1B petitions (See "Registration Requirement for Petitioners Seeking to File H-1B petitions on Behalf of Aliens Subject to the Numerical Limitations," Federal Register, Volume 76, No. 42, March 3, 2011). The proposed rule was opposed by many in the public comment stage including the Small Business Administration Office of Advocacy and is really unnecessary in these years where the cap did not get exhausted immediately.
Because the economy is improving, I project that H-1B visas will be reached much earlier in the fiscal year than last year (when it was exhausted late November).
Any employer that is contemplating filing an H-1B visa petition in the next year should do so sooner rather than later.
Even though the petitions can be filed in April, the actual start date cannot be sooner than October 1, 2012, the beginning of fiscal year 2013, unless certain conditions are met (For example a student in valid OPT status can continue to work throughout 10/1/2012 when a change of status request is approved).
USCIS changed its mind and decided not to go forward with the proposed advance registration rule of employers prior to filing H-1B petitions (See "Registration Requirement for Petitioners Seeking to File H-1B petitions on Behalf of Aliens Subject to the Numerical Limitations," Federal Register, Volume 76, No. 42, March 3, 2011). The proposed rule was opposed by many in the public comment stage including the Small Business Administration Office of Advocacy and is really unnecessary in these years where the cap did not get exhausted immediately.
Because the economy is improving, I project that H-1B visas will be reached much earlier in the fiscal year than last year (when it was exhausted late November).
Any employer that is contemplating filing an H-1B visa petition in the next year should do so sooner rather than later.
Thursday, February 9, 2012
MARCH 2012 VISA BULLETIN ADVANCES IN SOME EMPLOYMENT CATEGORIES
The U.S. Department of State just issued the March 2012 visa bulletin.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India jumped four months ahead to 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to 22 August 02.
Employment 4th – still current in all categories.
Employment 5th – still current in all categories.
Sluggish advancement for those waiting for green cards.
Employment 1st – still current in all categories.
Employment 2nd – World numbers, Mexico, and Philippines still current, China and India jumped four months ahead to 01 May 10.
Employment 3rd – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China jumped one month to 01 January 05; India moved one week to 22 Aug 02.
Employment 3rd Other Workers – World numbers, Mexico, and Philippines advanced three weeks to 15 March 06; China remains stalled at 22 April 03; one week advance for India to 22 August 02.
Employment 4th – still current in all categories.
Employment 5th – still current in all categories.
Sluggish advancement for those waiting for green cards.
Monday, January 30, 2012
WOULD LIBERALIZING H-1B RULES BRING IPHONE MANUFACTURING BACK TO THE US?
If you didn't read last weekend's really interesting New York Times article on Apple and why the iPhone is made in China rather than the United States, you really ought to read it. One area the reporters discuss is how US immigration policy has factored in to Apple's decision. The article looks at labor costs and while there are some savings with making the iPhone in China, that is not the primary driver in why the phone is not made in America.
But such calculations are, in many respects, meaningless because building the iPhone in the United States would demand much more than hiring Americans — it would require transforming the national and global economies. Apple executives believe there simply aren’t enough American workers with the skills the company needs or factories with sufficient speed and flexibility. Other companies that work with Apple, like Corning, also say they must go abroad.
One interesting part of the article is discussed at the very end. Steve Jobs hosted a dinner for President Obama and which was attended by leading Silicon Valley executives. A few ideas were discussed on ways to encourage companies to bring manufacturing back home.
At dinner, for instance, the executives had suggested that the government should reform visa programs to help companies hire foreign engineers. Some had urged the president to give companies a “tax holiday” so they could bring back overseas profits which, they argued, would be used to create work. Mr. Jobs even suggested it might be possible, someday, to locate some of Apple’s skilled manufacturing in the United States if the government helped train more American engineers.
Economists debate the usefulness of those and other efforts, and note that a struggling economy is sometimes transformed by unexpected developments. The last time analysts wrung their hands about prolonged American unemployment, for instance, in the early 1980s, the Internet hardly existed. Few at the time would have guessed that a degree in graphic design was rapidly becoming a smart bet, while studying telephone repair a dead end.
This is a point I've raised many times in this column. Immigration is not a zero sum game where hiring a foreign worker means a loss of a job for an American. In the Apple case, tens of thousands of manufacturing jobs could be created in the US to make iPhones if perhaps a few hundred or thousand highly skilled immigrants were readily available to fill positions where there are too few qualified Americans.
That's why I am encouraged to see Newt Gingrich promoting completely eliminating the H-1B visa cap. Our current H-1B cap was created in 1990, before there was an Internet. We are essentially handcuffed by rules set three decades ago for a very different American economy. And we are paying dearly for Congress' unwillingness to modernize our immigration policy.
Here's a link to the article: http://www.nytimes.com/2012/01/22/business/apple-america-and-a-squeezed-middle-class.html?_r=1
But such calculations are, in many respects, meaningless because building the iPhone in the United States would demand much more than hiring Americans — it would require transforming the national and global economies. Apple executives believe there simply aren’t enough American workers with the skills the company needs or factories with sufficient speed and flexibility. Other companies that work with Apple, like Corning, also say they must go abroad.
One interesting part of the article is discussed at the very end. Steve Jobs hosted a dinner for President Obama and which was attended by leading Silicon Valley executives. A few ideas were discussed on ways to encourage companies to bring manufacturing back home.
At dinner, for instance, the executives had suggested that the government should reform visa programs to help companies hire foreign engineers. Some had urged the president to give companies a “tax holiday” so they could bring back overseas profits which, they argued, would be used to create work. Mr. Jobs even suggested it might be possible, someday, to locate some of Apple’s skilled manufacturing in the United States if the government helped train more American engineers.
Economists debate the usefulness of those and other efforts, and note that a struggling economy is sometimes transformed by unexpected developments. The last time analysts wrung their hands about prolonged American unemployment, for instance, in the early 1980s, the Internet hardly existed. Few at the time would have guessed that a degree in graphic design was rapidly becoming a smart bet, while studying telephone repair a dead end.
This is a point I've raised many times in this column. Immigration is not a zero sum game where hiring a foreign worker means a loss of a job for an American. In the Apple case, tens of thousands of manufacturing jobs could be created in the US to make iPhones if perhaps a few hundred or thousand highly skilled immigrants were readily available to fill positions where there are too few qualified Americans.
That's why I am encouraged to see Newt Gingrich promoting completely eliminating the H-1B visa cap. Our current H-1B cap was created in 1990, before there was an Internet. We are essentially handcuffed by rules set three decades ago for a very different American economy. And we are paying dearly for Congress' unwillingness to modernize our immigration policy.
Here's a link to the article: http://www.nytimes.com/2012/01/22/business/apple-america-and-a-squeezed-middle-class.html?_r=1
Tuesday, January 17, 2012
TRAVEL FIRMS PRESS FOR SPEEDIER U.S. VISA PROCESSING
From the New York Times: "Travel groups and convention planners are among the groups pressing the United States to change some of its more onerous visa requirements, arguing that the current rules are keeping out many international business travelers and that a faster, more efficient process would help American companies compete in the global marketplace." Duh. We all know this.
"The waiting time to obtain a visa in some countries can be up to 100 days, according to the trade group U.S. Travel Association, and travelers who do not live in or near a city where an American consulate is located may have to spend hundreds of dollars in travel expenses for mandatory face-to-face interviews." And they are right. Absolutely nothing, about a 100-day wait time to make us any more secure. The low staffing levels and low level of training at some U.S. consulates and embassies not only does not improve our national security but actually hinders it. Requiring personal interview from just about everybody also hurts.
According to the article, global long-haul travel grew by 40 percent from 2000 to 2010, but the United States’ share fell to 12.4 percent from 17 percent. The association calculated that by failing to keep pace, the United States lost 78 million potential visitors who would have generated $606 billion in spending.
The immigration laws in this country needs to change. When a consular officer's focus in each interview is to determine whether someone is a potential immigrant or not without set standards the security factor dwindles and this hurts our economy even further.
http://www.nytimes.com/2012/01/17/business/thwarted-travelers.html?_r=2&partner=rss&emc=rss
"The waiting time to obtain a visa in some countries can be up to 100 days, according to the trade group U.S. Travel Association, and travelers who do not live in or near a city where an American consulate is located may have to spend hundreds of dollars in travel expenses for mandatory face-to-face interviews." And they are right. Absolutely nothing, about a 100-day wait time to make us any more secure. The low staffing levels and low level of training at some U.S. consulates and embassies not only does not improve our national security but actually hinders it. Requiring personal interview from just about everybody also hurts.
According to the article, global long-haul travel grew by 40 percent from 2000 to 2010, but the United States’ share fell to 12.4 percent from 17 percent. The association calculated that by failing to keep pace, the United States lost 78 million potential visitors who would have generated $606 billion in spending.
The immigration laws in this country needs to change. When a consular officer's focus in each interview is to determine whether someone is a potential immigrant or not without set standards the security factor dwindles and this hurts our economy even further.
http://www.nytimes.com/2012/01/17/business/thwarted-travelers.html?_r=2&partner=rss&emc=rss
Subscribe to:
Posts (Atom)