CIS teleconference today on recent H-1B memo

As noted yesterday, CIS held a "collaboration session" on the recent H-1B "employer-employee relationship" memo. Not surprisingly, the session was very well attended, with 500-600 people listening by phone, and another 40-50 attending in person. The session was generally not in a question and answer format, more a forum for each side to air opinions and comments.

CIS began by noting that the memo had been in the works for years.  The goal was to clarify the requirements and make it easier for employers and immigration lawyers to understand the standards.

Criticism

Many of the public comments that followed CIS's opening statements were critical of the memo and urged CIS to revoke it.  The comments, primarily from attorneys but also from one Senator and some business-owners, objected to the memo on various grounds, mainly

1. that it was creating new law in violation of the required rule-making procedures. Some businesspeople told of the US workers that had been laid off because their jobs would have supported H-1B workers that couldn't get hired;
2. that reducing the flow of H-1B workers into the US would stifle the American economy and encourage outsourcing;
3. that the memo as written would affect more than just the "job-shops" that CIS seemed to target., For example, a few attorneys remarked that this memo would prevent most doctors from getting H-1B status because very few doctors are employed directly by the hospital where they work. CIS seemed to acknowledge that they had not thought of this consequence;
4. that it violated existing H-1B regulations;
5. that it was having a domino effect, already causing problems for H-1B holders entering at US airports, and had even been the cause of one L-1 petition denial. CIS stated that it had no authority over CBP actions at the airport and that  the memo was not intended to effect anything other than H-1B petition decisions at CIS Service Centers.

Praise for the memo

Some speakers praised the memo. though their comments were vastly outnumbered by the memo's criticisms. Those in favor of the memo thanked CIS for restricting H-1B numbers at a time that many US workers were unemployed. One particularly vehement opponent of the H-1B program railed against Indian workers in particular and was cut off when her comments became particularly unhelpful and harsh.

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In the end, CIS agreed to consider all the comments and have a subsequent call on the topic. It noted that people can sign up for notice of this and other CIS events on their Public Engagement web page here.

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P.S. I will not accept anonymous comments that criticize my firm, foreign nationals, US immigration policy, etc.  If you want these comments posted, please say who you are, like I do.

CIS holds teleconference tomorrow on new H-1B memo.

USCIS is inviting people to attend a meeting tomorrow to discuss the implementation of the recent memo on determining if a valid employer-employee relationship exists.People can attend in person or by phone. For more information, including how to attend, see here and here. I will be attending the meeting and will blog about the call afterwards.

CIS issues FAQs on recent memo on "employer-employee" relationship

USCIS has published an FAQ memo to its website, that answers some common questions about how H-1B petitions for consulting companies will be treated now. The memo addresses what evidence should be provided with H-1B petitions, what will happen if the evidence does not prove an "employer-employee" relationship, whether an itinerary is required, and more.

The memo stresses a few times that a petitioner is only obliged to submit evidence that "is required by regulations." Any other evidence, including in response to a Request for Evidence, can be "other similar probative evidence." We'll see.....

CIS issues memo on "employer-employee" relationship and consulting arrangements

The US Citizenship and Immigration Service has issued a long memorandum on what constitutes an "employer-employee" relationship for H-1B purposes. This should be especially interesting to H-1B workers and employers with consulting or contracting arrangements.

US immigration regulations (8 C.F.R. 214.2(h)(4)(ii)) require, among other things, that a H-1B petitioner "Has  an  employer-employee  relationship with respect to  employees under  this  part, as indicated by the  fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee"

CIS acknowledges that the lack of guidance defining what constitutes a valid employer-employee relationship has caused problems, especially when employees such as consultants or contractors are placed at 3rd-party sites. In these situations, the petitioner might not be able to show the required control over the employee's work. CIS considers that the "right to control" the employee's work is critical. The memo stresses that the right to control is different to actual control. To analyze the control, CIS looks at:

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 with any type of 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. Can  the petitioner control the manner and means in which the work product of the beneficiary is accomplished? 

The CIS Memo describes various different employment relationships, and states whether they meet the regulatory requirements. Those which CIS considers do not comply with regulations include:

• Self employment;
• Independent contractors;
• "Job shops".

The memo describes, in detail, the evidence that can be submitted to prove an employer-employee relationship, especially where the employee will be working off-site.  

The memo also  notes that petitions must show compliance with 8 C.F.R. 214.2(h)(2)(i)(B) which states:

Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.

The memo notes that to satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must "submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing  duties  in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments." Submitting a detailed itinerary for the next 3 years will be very difficult for many employers who place employees out on contracts.

This memo has just been published today, and there will undoubtedly be many more articles published that analyze the provisions. 

1/25/10 UPDATE: I'm happy that this posting is helping so many people. However, I cannot answer specific situations in the comments. This blog provides general information, not specific legal advice. If you would like a formal legal opinion, please speak with a lawyer who could fully analyze your situation and see all your documents. Also, before asking a general question, please check the comments to see if it has been answered earlier.

H-1B cap reached for Fiscal Year 2010

As noted in this link:

As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010.  USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009   USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

H-1B cap update

USCIS has updated the H-1B cap count. As of December 15, CIS has received approximately 64,200 cases against the regular (non-Master's) H-1B cap of 65,000. As mentioned last week, CIS sets aside up to 6,500 of this 65,000 for nationals of Chile and Singapore.  Last year CIS set aside about 700 for this purpose, so we can assume that the cap has now been reached, although CIS is still accepting petitions.

H-1B cap reached for FY2010?

USCIS has updated the H-1B cap count. As of December 8, CIS has received approximately 61,500 cases against the regular (non-Master's) H-1B cap of 65,000. However, since CIS sets aside up to 6,500 of this 65,000 for nationals of Chile and Singapore, it is possible that they will stop accepting other H-1B petitions soon, if not already. We are still filing new petitions, but with fingers crossed that they are not too late. If you need to file, please do so ASAP.

For more information, see the previous blog posts here.

H-1B cap count updated

USCIS has updated the H-1B cap count. As of November 27, 2009, CIS has received approximately 58,900 cases against the regular (non-Master's) H-1B cap. This is 4,000 more than the last count 3 weeks earlier, so numbers are going fast.  

For more information, see the previous blog posts here.

H-1B cap count updated

USCIS has updated the H-1B cap count. As of November 6, 2009, CIS has received approximately 54,700 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here.

H-1B cap count updated

USCIS has updated the H-1B cap count. As of October 30, 2009, CIS has received approximately 53,800 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here.

H-1B cap count updated

USCIS has updated the H-1B cap count. As of July 24, 2009, the agency has 44,900 cases against the regular (non-Master's) H-1B cap. This is only 100 more than the count on June 30. For more information, see the previous blog posts here.

Who can pay the H-1B costs - employer or employee?

Many foreign nationals report that their employers ask the employees to pay the costs of getting H-1B status for themselves. If the employees are not asked to pay up-front, they may be asked to sign a reimbursement agreement, agreeing to repay the costs if they leave the company within a certain time.

H-1B Costs

There are 2 main costs in getting H-1B approved: government filing fees and legal fees. The filing fees are:
A. $320 I-129 fee
B. $1500 Education and Training Fee (For 1st H-1B petition and first extension) fee is $750 if under 25 employees.
C. $500 Anti-Fraud Fee (for employer's first H-1B petition for that foreign national).

Legal fees vary by attorney, of course.

What can the employee pay?

An employee cannot pay any part of the training fee listed at B. above. This is not permitted under any circumstances. Many attorneys believe that the employee legally can't pay the $500 Anti-Fraud Fee either. This is not correct - CIS has specifically said that this fee "does not need to be paid only by the petitioner." (AILA Service Center Operations teleconference 4/11/05).

There is a possible restriction on employees paying any of the rest of H-1B fees, if the salary being paid to the employee is very close to the "prevailing wage" or the "actual wage" for the position.

"Prevailing wage"is what the employer must agree to pay the foreign national, and it is what a survey shows is the normal salary for that position in that location.
"Actual wage" is defined as "the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question." If there is nobody else with similar experience and qualifications for the job (because the H-1B worker is the only person in that category), then the "actual wage" would be whatever is paid to the H-1B employee.

There is an argument that if an employee pays any of the H-1B fees, this must be considered as a deduction from salary. If the salary, after this deduction, is below the "prevailing wage" or "actual wage" (whichever is higher), then there is a problem.

Are reimbursement agreements enforceable?

Apart from the limitation on recouping fees above, the question of whether a reimbursement agreements is enforceable is a matter of local state employment and contract laws.

H-1B cap count updated - now 44,800

USCIS has updated the H-1B cap count. As of June 30, 2009, the agency has 44,800 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. For more information, see the previous blog post here.

H-1B cap count updated - number reduced

USCIS has updated the H-1B cap count, and now says it has 1,300 fewer cases than last time. It now has 44,400 cases against the regular (non-Master's) H-1B cap, compared with 47,500 on May 29. We wonder if this means that 1,300 cases have been denied or withdrawn, or if CIS discovered duplicate filings that it rejected. For more information, see the previous blog post here and here.

Can I change from H-1B to F-1?

I have written a couple of blog postings about the effect of layoffs on H-1B workers (see links below). Another common question in this regard is whether the H-1B worker can change to F-1 status and, perhaps, change back to H-1B again if they find another job. Some actual examples of the questions are:

"If I am on H1B visa but I have been laid off by my current employer and they will announce my leaving in one month. I am planning to change to F1 status. If I get another employer later on that sponsor again my visa. Do I get subject to a cap?"

"I have been on an H1B visa for 2.5 years; I am considering attending grad school in Minnesota for my MSME in the Fall, so I would be switching to an F-1 student visa.
My question is: if after I graduate with my Master's Degree, I apply for & get another H1B job - so I switch from F-1 back to H1B visa - do I get a fresh 6 year timeclock started on my new H1B? Or, do I only have 3.5 years left that I can be in H1B status - because of my H1B work time before the F-1/grad school?"

"I have been on the H-1B visa for 1 and a half years.I was laid off recently and am planning to attend school which starts in July 09.
i) Do I need a F-1 visa apart from an I-20?
ii) Do I need to go out of US for stamping?"

Answer:

H-1B to F-1:

A H-1B holder can change fro H-1B to F-1 if she meets all the requirements for F-1 status, including having nonimmigrant intent. "Nonimmigrant intent" means that she needs to show that she intends intend to return to her home country at the end of her studies. Having been here in H-1B status, especially if she has been here a long time, makes it more difficult to show the required nonimmigrant intent. If the applicant or her employer has filed for permanent residence, this completely contradicts nonimmigrant intent.

Despite these warnings, it is not impossible to prove nonimmigrant intent. In addition to this evidence, the F-1 applicant needs to show (a) that she has enrolled in a school and has an endorsed I-20; (b) that she has sufficient funds to pay the expenses for and dependents while studying; and (c) that she will be maintaining status up to the start of classes.

Do I need to leave the US to get an F-1 visa?

The F-1 application could be decided in a number of ways, assuming it is not denied completely. At best, the foreign national could get approval for an automatic change of status to F-1. This would operate to automatically change the foreign national's status to F-1 without the need to leave the US.

However, if the applicant cannot prove maintenance of status, CIS might just approve the F-1 part of the petition, but not the automatic change of status part. This means that the foreign national would need to leave the US and get an F-1 visa at a consulate before returning in F-1 status. The consulate will need eveidence of nonimmigrant intent, as explained above.

Please see here for the difference between "visa" and "status".

Changing back to H-1B later

If the foreign national finds a new employer who files a new H-1B petition, this new petition is not subject to the H-1B cap. The foreign national has already been included in the cap within the past 6 years, so he is not counted again. The only way that the employee would be subject to the cap again is if (a) he used a full 6 years in H-1B status, and then spent one full year outside the US; OR (b) was moving from a cap-exempt H-1B employer to a cap-subject employer.

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Prior postings on layoffs here.

Photo by http://www.flickr.com/photos/david55king/

H-1B cap count update - 45,700 now used.

USCIS updated the H-1B cap count for Fiscal Year 2010. It now has 45,700 cases against the regular (non-Master's) H-1B cap. For more information, see the previous blog posts here and here

New guidance issued on H-1Bs for healthcare workers

The US Citizenship and Immigration Service (USCIS) has issued new guidance on the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health-care specialty occupation.

The memo suggests that adjudicators should first consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether the position qualifies as a H-1B "specialty occupation" as defined in the Immigration and Nationality Act.

The memo addresses licensing requirements for health-care workers in detail, and the effect of having a license - or not having a license - on approval of a case. If the foreign national has the required license, the adjudicator should not "look beyond the license." If the foreign national has a restricted license (e.g., license approved except for mandatory supervised practice), and the petition is otherwise approvable, an adjudicator should approve the petition for one year, or the duration of the restricted license, whichever is longer.

If the employee does not have the license because s/he needs certain immigration documents before getting a license, CIS can approved the petition for one year. The memo says that

"The approval of any such H-1B petition shall not constitute approval by USCIS for the alien beneficiary to engage in any activity requiring possession of such State or local license. It is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied."

Photo by http://www.flickr.com/photos/adrianclarkmbbs/

H-1B cap count updated - 45,500 now used

USCIS updated the H-1B cap count for Fiscal year 2010. It now has 45,500 cases against the regular (non-Master's) H-1B cap.

H-1B cap count updated

According to USCIS, the agency has now received new 45,000 H-1B petitions towards the regular cap of 65,000. See here for details.

H-1B and L-1B Visa Reform Act introduced in Congress

Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) today introduced the H-1B and L-1 Visa Reform Act - narrowly-tailored bipartisan legislation that would, in their words,

reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

Senator Durbin's website states the following:

The H-1B visa program should complement the U.S. workforce, not replace it,” Durbin said. “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found. However, the H-1B visa program is plagued with fraud and abuse and is now a vehicle for outsourcing that deprives qualified American workers of their jobs. Our bill will put a stop to the outsourcing of American jobs and discrimination against American workers.

The Reform Act would

• Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers;
• Prohibit the of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders;
• Allow DOL to initiate investigations without a complaint and without the Labor Secretary’s personal authorization;
• Authorize DOL to review H-1B applications for fraud;
• Allow DOL to conduct random audits of any company that uses the H-1B program; and
• Require DOL to conduct annual audits of companies who employ large numbers of H-1B workers.