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.

February 2010 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for February 2010. As in previous months, there is very slight change.  To view the bulletin, click here.

New FAQs on Vaccination Requirements

The USCIS has issued new information on the vaccination requirements for foreign nationals here.  The guidance explains that applicants for US permanent residence need to be vaccinated against the following:

• Mumps
• Measles
• Rubella
• Polio
• Tetanus and Diphtheria Toxoids
• Pertussis
• Influenza Type B
• Hepatitis B
• Any other vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices.

The guidance answers questions regarding why vaccination is required, what proof is needed of prior vaccinations, what happens if vaccines are not medically appropriate, e.g. because the applicant is pregnant, how to get a waiver of the vaccination requirement, etc. 

More on Affidavits of Support

I blogged about Affidavits of Support here last year, and that blog post has received far more comments so far than any other post. I cannot answer specific questions via the blog , so I hope that last year's FAQs are a help. I recently found another great FAQ publication here, from the National Immigration Law Center (NILC). The NILC article links to other useful resources from the government and from NILC itself. I hope you find this as informative as I did.

New system for prevailing wage determinations implemented

The Department of Labor (DOL) has implemented a new system for requesting prevailing wage determinations (PWD), starting on January 1, 2010. Starting on that date, all PWD requests ust be sent to the National Prevailing Wage and Helpdesk Center (NPWHC). This means that State Workforce Agencies will no longer accept PWDs for PERM, H-1B, H-1B1 (Chile/Singapore), E-3 (Australia) or H-2B programs.

Where to send requests

Employers or their attorneys now must request a PWD on Form ETA-9141.  Initially, the form must be send by mail or other delivery service (UPS, FedEx, etc) to:

U.S. Department of Labor ETA,
National Prevailing Wage and Helpdesk Center ,
Attn: PWD Request,
1341 G Street, NW, Suite 201,

Washington, DC 20005-3142.

DOL is implementing a system for electronic submission of PWD requests and I will report as soon as this is finalized.

PWD Results

DOL will send the PWD results by e-mail, if the requestor lists an e-mail address on the Form 9141. Otherwise, the results will be mailed.

Processing Times.

DOL will process PWDs in the order they are received. The Department recommends that applicants submit the PWDs at least 60 days before they are needed, e.g. before recruitment starts for PERM.

DOL FAQs on the new system are here.

New airport security measures anounced

The US Transportation Security Administration (TSA) has issued guidance for people traveling after the attempted bombing of a plane on Christmas Day. TSA stresses that security measures are not the same in every airport, and this is deliberate so that people cannot anticipate how they will be screened. Details of the TSA guidance is here.

Photo thanks to http://www.flickr.com/photos/sixmilliondollardan/3382932556/ 

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.

The Department of State has issued a press release with details of a proposed fee increase.  The fees would apply to all nonimmigrant visa applications and border crossing cards. 

Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor visas, would pay a fee of $140. Applicants for petition-based visas would pay an application fee of $150. These categories include:

•  H visa for temporary workers and trainees
•  L visa for intracompany transferees
•  O visa for aliens with extraordinary ability
•  P visa for athletes, artists and entertainers
•  Q visa for international cultural exchange visitors
•  R visa for religious occupations

The application fee for K visas for fiancé(e)s of U.S. citizens would be $350.  The fee for E visas for treaty-traders and treaty-investors would be $390. 

The Department will not begin collecting the new proposed fees until it considers public comments and publishes a final rule.  In order to view the proposed rule and to submit comments, please go to www.regulations.gov.

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.

Immigration Reform Bill introduced in Congress

Representative Luis V. Gutierrez, Democrat of Illinois, introduced a bill in Congress yesterday to reform US immigration laws. The bill's introduction is seen as a reaction to President Obama's delay in starting his proposed immigration reform measures. It is unlikely that the bill will pass, however, as it contains provisions similar to an amnesty for undocumented immigrants. Anything resembling an amnesty provision is strongly opposed by many in Congress. 

See the New York Times article on the bill here.

Visa Bulletin for January 2010 released

The US Department of State has released the new Visa Bulletin for January 2010. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. EB-2 for China moves forward by 1 month, and EB-2 for India is unchanged from last month. This means that India EB-2 has stayed the same sinced October 2009.  

3rd preference categories change slightly from last month. EB-3 for China, Philippines and all other countries move forward 2 months.  Mexico advances 1 month and India by almost 2 months.

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.

Continuing with the travel theme in the last blog posting, CBP has launched a communications campaign in adavnce of the Winter Olympics in Vancouver next year.  The campaign aims to advise travellers of the documents they need to return to the US, pursuant to the WHTI (Western Hemisphere Travel Initiative).  See my prior blog posting on WHTI here.

For the CBP news release, see here.  For WHTI, see here.

CBP prepares for cross-border football fans

Are you a fan of the Buffalo Bills or New York Jets and traveling to the game in Toronto on Thursday, 12/3?  If so, the US Customs and Border Protection agency has travel advice for you here.  CBP advises travelers to  check traffic conditions at the four border crossings within the Buffalo/Niagara region, and select the crossing that is least congested. Travelers can easily obtain current border traffic conditions by calling the Niagara Falls Bridge Commission’s toll free number at 1-800-715-6722 or by visiting various web sites listed by CBP.

Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for inspection and they should be prepared to declare all items acquired outside the U.S. In compliance with full implementation of the Western Hemisphere Travel Initiative, which commenced June 1, all travelers, including U.S. and Canadian citizens, will need to present documentary proof of citizenship.

These documents include a Passport, U.S. Passport Card, trusted traveler card (NEXUS, SENTRI or FAST) or an Enhanced Drivers License. Children under the age of 16 can present an original or copy of their birth certificate. CBP will remain practical and flexible in its approach to full implementation of the Western Hemisphere Travel Initiative and will continue to educate and inform the traveling public. Please visit the WHTI Web site for additional information. (GetYouHome.gov)

Photo credit: http://www.flickr.com/photos/ronalmog/

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.

1,000 more employers being investigated

I have blogged before about the current administration's increased enforcement of immigration laws at worksites. The Department of Homeland Security (DHS) announced yesterday that it had issued NOIs (Notices of Inspection) to another 1,000 employers nationwide. View the press release here.

The audits involve a detailed analysis of the employers' Forms I-9. This form should be completed for every employee on hiring, and it verifies the employee's identity and work authorization.   

The press release also provides statistics since the increased enforcement started last April:

• 45 businesses and 47 individuals debarred;
  
  
  
  • 0 businesses and 1 individual were debarred during same period in FY 2008.
  
  
  
  
• 142 Notices of Intent to Fine (NIF) totaling $15,865,181;
  
  
  
  • ICE issued 32 NIFs totaling $2,355,330 in all of FY 2008.
  
  
  
  
• 45 Final Orders totaling $798,179;
  
  
  
  • ICE issued eight Final Orders totaling $196,523 during the same period in FY 2008.
  
  
  
  
• 1,897 cases initiated;
  
  
  
  • ICE initiated 605 cases during the same period in FY 2008.
  
  
  
  
• 1,069 Form I-9 Inspections;
  
  
  
  • ICE initiated 503 Form I-9 Inspections in all of FY 2008.
  
  
  
  

In July, ICE issued 654 NOIs to businesses nationwide in the largest operation of its kind before today - part of ICE's effort to audit businesses suspected of using illegal labor.

Statistics resulting from the 654 audits announced in July:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents - approximately 16 percent of the total number reviewed.
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.
  

The New York Times published an article on this subject today.  It notes that

The audits, however, have resulted in large-scale dismissals at the hands of employers, leaving the government one step removed.

In September, American Apparel, a clothing maker with a large garment factory in downtown Los Angeles, fired about 1,800 immigrant employees — more than a quarter of its work force — after a federal audit turned up irregularities in identity documents the workers presented when they were hired. 

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.

December 2009 Visa Bulletin released

The US Department of State has released the new Visa Bulletin for December 2009. In family-based categories, there is very slight movement forward, but just by a few weeks or months in most categories.

Employment-based categories remain "Current" for all 1st preference applicants, and for 2nd preference from Mexico, Philippines, and countries other than India and China. 3rd preference and other categories are mostly unchanged from the November and October bulletins.  The only changes are that India EB-3 and 'other worker" categories move forward by 10 days.

US immigration launches campaign against human trafficking

US Immigration and Customs Enforcement (ICE) has launched an outdoor publicity campaign to raise awareness of the plight of human-trafficking victims in the United States.   The campaign, called "Hidden in Plain Sight,"  explains that human trafficking includes those who are sexually exploited or forced to work against their will.

Posters, billboards and transit shelter signs were rolled out last month bearing the slogan "Hidden in Plain Sight." They are displayed in Atlanta, Boston, Dallas, Detroit, Los Angeles, Miami, Philadelphia, Newark, New Orleans, New York, St Paul, San Antonio, San Francisco and Tampa.

ICE states

It is estimated that 800,000 men, women and children are trafficked around the world each year. These victims are trafficked into the commercial sex trade, and into forced-labor situations. Many of these victims are lured from their homes with false promises of well-paying jobs; instead, they are forced or coerced into prostitution, domestic servitude, farm or factory labor, or other types of forced labor.

ICE is asking for the public's help to remain alert to recognize and identify victims of modern-day slavery who are in our midst. They are domestic servants, sweat-shop employees, sex workers and fruit pickers who were lured here by the promise of prosperity. Ultimately, they are forced to work without pay and are unable to leave their situation. ICE is committed to giving them the help they need to come forward and help us end human trafficking with vigorous enforcement and tough penalties. As a primary mission area, ICE has the overall goal of preventing human trafficking in the United States by prosecuting the traffickers, and rescuing and protecting the victims.

For more information, see here.

Photo courtesy of http://www.flickr.com/photos/missy-and-the-universe/

New USCIS SAVE video released

US immigration has published a video explaining its Systematic Alien Verification for Entitlements (SAVE) program.  The SAVE website explains that 

the SAVE Program is an inter-governmental initiative designed to aid benefit-granting agencies in determining an applicant’s immigration status, and thereby ensure that only entitled applicants receive federal, state, or local public benefits and licenses. The Program is an information service for benefit-issuing agencies, institutions, licensing bureaus, and other governmental entities.

The website continues by noting that 

• 
  

  The SAVE Program does not make determinations on any applicant's eligibility for a specific benefit or license.
  

  
  
• 
  

  The SAVE Program does not verify status for employment.
  

  
  

For more information on the SAVE program, see here.