USCIS recently issued an update in the H-1B cap petitions received so far and are either pending or approved. As of April 22, 2010, USCIS received 16,025 regular H-1B cap petitions plus an additional 6,739 petitions for the H-1B master's cap (for individuals with higher U.S. degrees).
The number of H-1B petitions filed continue to trickle down very slowly due to the economic situation and many employers that are now prohibited from filing due to the Neufeld memo. Additional updates will be forthcoming...
Monday, April 26, 2010
Monday, April 12, 2010
USCIS FAQ ON EXTENSION OF CAP-GAP AND OPT FOR F-1 STUDENTS
USCIS recently issued its FAQ on cap-gap protection for F-1 students lawfully present in the U.S. who file for a change of status from F-1 to H-1B for Fiscal Year 2011.
The cap-gap problem stems from the time difference between the H-1B start time and the students' OPT (Optional Practical Training) times. The H-1B visa first becomes available based on on the government fiscal year (which start every year from October 1 to September 30 the following year). H-1B visas can be filed up to 6 months in advance (April 1). However, the student school year usually ends in May for the majority of the students. Once the students graduate, and apply for their OPTs prior to graduation, their OPT expire within one year, usually between May and July, depending on the end of the school year. That leaves a gap between these dates and October 1 where the H-1B starts.
In the past USCIS did not accommodate cap-gap situations, however it now does. USCIS allows F-1 students to avoid the cap-gap situation when an H-1B petition is filed for them and approved for change of status. This automatic extension provides the student continuous status throughout the start date of their H-1B visas, as well as continued employment authorization under their OPT. This terminates upon rejection, denial or revocation of the H-1B petition or for people who violate their status.
Based on this guidance, students can request their schools to update their I-20 forms to allow for the extension throughout September 30, 2010.
The entire FAQ is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD
The cap-gap problem stems from the time difference between the H-1B start time and the students' OPT (Optional Practical Training) times. The H-1B visa first becomes available based on on the government fiscal year (which start every year from October 1 to September 30 the following year). H-1B visas can be filed up to 6 months in advance (April 1). However, the student school year usually ends in May for the majority of the students. Once the students graduate, and apply for their OPTs prior to graduation, their OPT expire within one year, usually between May and July, depending on the end of the school year. That leaves a gap between these dates and October 1 where the H-1B starts.
In the past USCIS did not accommodate cap-gap situations, however it now does. USCIS allows F-1 students to avoid the cap-gap situation when an H-1B petition is filed for them and approved for change of status. This automatic extension provides the student continuous status throughout the start date of their H-1B visas, as well as continued employment authorization under their OPT. This terminates upon rejection, denial or revocation of the H-1B petition or for people who violate their status.
Based on this guidance, students can request their schools to update their I-20 forms to allow for the extension throughout September 30, 2010.
The entire FAQ is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD
USCIS UPDATES H-1B CAP COUNT FOR APRIL 8 -- AT 13,500
USCIS announced that as of April 8, 2010, it has received approximately 13,500 H-1B petitions counting toward the 65,000 cap and approximately 5,600 petitions for individuals with U.S. advanced degrees. Therefore, the H-1B season is still open and USCIS will continue to accept the H-1B petitions until the cap is reached.
A sluggish economy and many available American workers who were laid off are probably the culprit for the low usage. At the same time, the recent Neufeld memo restricting the IT consulting companies from sponsoring H-1B visas has probably hurt many of these companies and restricted their sponsorship abilities.
A sluggish economy and many available American workers who were laid off are probably the culprit for the low usage. At the same time, the recent Neufeld memo restricting the IT consulting companies from sponsoring H-1B visas has probably hurt many of these companies and restricted their sponsorship abilities.
Friday, April 9, 2010
VSC RECEIVED 9,525 CAP SUBJECT H-1B PETITIONS AS OF 4/5/2010
USCIS confirmed at the Vermont Service Center Stakeholder meeting on Tuesday, April 6, 2010, that as of close of business on Monday, April 5, 2010, VSC has received a total of 9,525 cap-subject H-1B petitions. Out of those, 6,891 under the regular cap and 2,734 under the master's cap.
VSC also confirmed that the receipting date of all applications prior to April 7 will be April 7th, which is the same date where the 15-day premium processing clock will start.
While the numbers quoted above do not include the CSC intake, which has not yet been made available, this is encouraging news that the cap was not completely maximized and there are still available visa numbers for those interested in filing.
VSC also confirmed that the receipting date of all applications prior to April 7 will be April 7th, which is the same date where the 15-day premium processing clock will start.
While the numbers quoted above do not include the CSC intake, which has not yet been made available, this is encouraging news that the cap was not completely maximized and there are still available visa numbers for those interested in filing.
Thursday, February 25, 2010
ECONOMIC POLICY INSTITUTE'S BRIEFING PAPER BIASED
The Economic Policy Institute’s briefing paper written by Ron Hira, released last week, concludes that the practice of using H-1B and L-1 workers and then sending them back to their home countries is bad for the economy.
The report's premise is that some employers use H-1B’s and L visas as a bridge to permanent residence, and some employers use those categories to transfer temporary workers. He divides the employers to good ones (who are U.S. corporations that bring H and L workers to the U.S., pay them adequate wage and sponsor them for permanent residency thereby transferring knowledge to U.S. workers) and the bad ones (generally foreign employers or U.S. employers with off-shore companies in India that bring these workers for temporary periods, exploit and underpay them and then send them back home after receiving U.S. training).
Hira called his statistic “immigration yield,” which is just a comparison of H and L visa usage versus the number of PERM applications filed by the highest users of those visas. His conclusion that because the highest users of H-1B's and Ls are Indian consulting companies, and these companies have only a minimal number of PERMs certified, they are using H's and L’s as cheap temporary labor.
This analysis is flawed for many reasons. For one, he cannot explain the high number PERM filings of one of the IT consulting companies that is headquartered in the U.S. Second, at least with the H-1B visa there is employee portability, so one firm not applying for PERM does not mean these employees are not sponsored for permanent residence by another employer. Also, the EB-3 and EB-2 immigrant visa numbers retrogression is severe for Indian nationals (EB-3 numbers are backlogged for all nationalities) -- so maybe the Indian worker does not want to wait 20 years for a green card in the EB-3 category? Third, his implication that companies that don’t sponsor H’s and L’s for PERM are using these workers instead of more expensive American labor has no basis in reality. At least with the H-1B visas, the employer must pay at prevailing wage levels. No salary data (average or median) was used in this report at all to show what the actual pay is for those employees. Also, most L-1A managers/executives are exempt from the PERM process altogether. I could go on and on about this but choose not to...
The reality is that usage of H-1B and L visas varies depending on the needs of the employer, whether it be bringing these workers here for a permanent basis or rotating experienced professionals into the U.S. and send them abroad (back home or to a third country). According to the government's fraud statistics (USCIS and DOL enforcement actions), the majority of employers who use H-1B workers pay these workers adequate wages and comply with all of the rules. Yes, there are abusers of the program, but these abusers are not the typical international corporations that rotate employees between different countries.
My recommendation to Hira is to actually do your complete research before publishing a biased briefing paper, but I suspect this was not his intention in the first place anyway...
The report's premise is that some employers use H-1B’s and L visas as a bridge to permanent residence, and some employers use those categories to transfer temporary workers. He divides the employers to good ones (who are U.S. corporations that bring H and L workers to the U.S., pay them adequate wage and sponsor them for permanent residency thereby transferring knowledge to U.S. workers) and the bad ones (generally foreign employers or U.S. employers with off-shore companies in India that bring these workers for temporary periods, exploit and underpay them and then send them back home after receiving U.S. training).
Hira called his statistic “immigration yield,” which is just a comparison of H and L visa usage versus the number of PERM applications filed by the highest users of those visas. His conclusion that because the highest users of H-1B's and Ls are Indian consulting companies, and these companies have only a minimal number of PERMs certified, they are using H's and L’s as cheap temporary labor.
This analysis is flawed for many reasons. For one, he cannot explain the high number PERM filings of one of the IT consulting companies that is headquartered in the U.S. Second, at least with the H-1B visa there is employee portability, so one firm not applying for PERM does not mean these employees are not sponsored for permanent residence by another employer. Also, the EB-3 and EB-2 immigrant visa numbers retrogression is severe for Indian nationals (EB-3 numbers are backlogged for all nationalities) -- so maybe the Indian worker does not want to wait 20 years for a green card in the EB-3 category? Third, his implication that companies that don’t sponsor H’s and L’s for PERM are using these workers instead of more expensive American labor has no basis in reality. At least with the H-1B visas, the employer must pay at prevailing wage levels. No salary data (average or median) was used in this report at all to show what the actual pay is for those employees. Also, most L-1A managers/executives are exempt from the PERM process altogether. I could go on and on about this but choose not to...
The reality is that usage of H-1B and L visas varies depending on the needs of the employer, whether it be bringing these workers here for a permanent basis or rotating experienced professionals into the U.S. and send them abroad (back home or to a third country). According to the government's fraud statistics (USCIS and DOL enforcement actions), the majority of employers who use H-1B workers pay these workers adequate wages and comply with all of the rules. Yes, there are abusers of the program, but these abusers are not the typical international corporations that rotate employees between different countries.
My recommendation to Hira is to actually do your complete research before publishing a biased briefing paper, but I suspect this was not his intention in the first place anyway...
Monday, January 18, 2010
NEW USCIS MEMO REDEFINES EMPLOYER-EMPLOYEE DEFINITIONS IN THE H-1B CONTEXT
On January 8, 2010, Donald Neufeld, Associate Director of Service Center Operations at USCIS issued a memo titled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements". This memo contains additions to the Officer's Field Manual and completely reverses multiple AAO decisions (although unpublished) and employment law provisions in various states.
The memo specifically goes after IT Consulting firms or placement firms where the individual is placed at a third party worksite and does not implement the Petitioner's proprietary software. IT implementation firms appear to be protected by this memo but they are not completely out of the woods.
The memo also goes after small business owners that are sole owners of the company sponsoring them for H-1B visas, or majority shareholders in the same. The USCIS memo states that since the beneficiary has direct control over the corporation, the corporation does not control the employment of the beneficiary.
In both cases, the USCIS memo states that there is no employer-employee relationship and therefore H-1B sponsorship is not permitted. In both cases USCIS states that there is no right to control the employee on a daily basis.
USCIS will consider the following in determining whether there is an employer-employee relationship, notwithstanding the fact that the IT consulting firm hired the individual and is on its payroll:
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, i.e. weekly calls, reporting back to main office routinely, 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 hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
8) Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
This Memo cites the example of a third party placement where "the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee, and the USCIS will deny such an H-1B petition. In the recent past, USCIS allowed such H-1B petitions as long as a letter from the end client was provided to confirm the job duties. Now the Neufeld Memo adds these draconian requirements – this right of control, which will be impossible to prove by an IT consulting firm that does not have its own proprietary product or methodology.
This memo brings a sharp departure from prior USCIS policies and AAO decisions, and directly contradicts many Federal and state laws relating to employment, including discrimination laws, equal pay and the Fair Labor Standard Act.
It is almost certain that litigation will follow by someone, as this industry will be out of business if this is allowed to continue.
The memo specifically goes after IT Consulting firms or placement firms where the individual is placed at a third party worksite and does not implement the Petitioner's proprietary software. IT implementation firms appear to be protected by this memo but they are not completely out of the woods.
The memo also goes after small business owners that are sole owners of the company sponsoring them for H-1B visas, or majority shareholders in the same. The USCIS memo states that since the beneficiary has direct control over the corporation, the corporation does not control the employment of the beneficiary.
In both cases, the USCIS memo states that there is no employer-employee relationship and therefore H-1B sponsorship is not permitted. In both cases USCIS states that there is no right to control the employee on a daily basis.
USCIS will consider the following in determining whether there is an employer-employee relationship, notwithstanding the fact that the IT consulting firm hired the individual and is on its payroll:
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, i.e. weekly calls, reporting back to main office routinely, 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 hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
8) Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
This Memo cites the example of a third party placement where "the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee, and the USCIS will deny such an H-1B petition. In the recent past, USCIS allowed such H-1B petitions as long as a letter from the end client was provided to confirm the job duties. Now the Neufeld Memo adds these draconian requirements – this right of control, which will be impossible to prove by an IT consulting firm that does not have its own proprietary product or methodology.
This memo brings a sharp departure from prior USCIS policies and AAO decisions, and directly contradicts many Federal and state laws relating to employment, including discrimination laws, equal pay and the Fair Labor Standard Act.
It is almost certain that litigation will follow by someone, as this industry will be out of business if this is allowed to continue.
Friday, January 8, 2010
VSC CONFIRMS $500 FRAUD FEE MAY BE PAID BY BENEFICIARY OR THIRD PARTY
VSC confirmed to AILA in a teleconference that the $500 fraud fee may be paid by the beneficiary (employee) or by a third party, not necessarily by the employer. However, if the beneficiary provides the $500 fraud fee, this cost will be deducted from the total wage paid to the H-1B beneficiary when determining whether s/he has received the required wage (prevailing or actual wage, whichever is higher). There have been some confusion with some consular officers and DOL investigators who confuse permissible payors of the fraud fee with the ACWIA training fee, which is not permissible under any circumstance to be paid by the beneficiary (employee).
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