Archive for January, 2010

ALERT: Multiple Reports of H-1B IT Consultants Being Turned Away At Border

January 15, 2010

Over the past week there have been numerous reports of H-1B employees being turned away upon entry at airports in Newark, New Jersey and JFK in New York City.  Seemingly in response to the USCIS memo released earlier this week (Determining Employer-Employee Relationship for Adjudication of H-1B Petitioners, Including Third-Party Site Placements, Donald Neufeld, January 9, 2010), some H-1B employees that work for IT consultancy firms (employees that are hired by an IT consultancy firm and working at a third-party worksite) have reported being erroneously subject to expedited removal and forced to return to their home country.

Until we receive more details on the situation, we do not know if this is a new trend that we expect to see on a nationwide basis or if these were isolated events limited to these two ports of entry.  Therefore, until we know that this issue has been resolved, we recommend that all H-1B employees working for IT consultancy firms consult with your attorney prior to any international travel.

USCIS Issues Guidance on Employer-Employee Relationship Requirements for H-1B Petitions: Severely Limits Eligibility of IT Consultancy Firms and Other Third-Party Site Placements

January 15, 2010

Today a new USCIS memo was released that could severely limit the ability of IT Consultancy Firms to sponsor H-1B applicants.  Since April 2009, the government has been changing their interpretation of many aspects of the H-1B program, to the detriment of employers and prospective H-1B employees.  This is certainly due, at least in part, to the government’s new focus on fraud prevention in the H-1B program.  While we are certainly in favor of any new procedures or interpretations that could reduce fraud in the H-1B or any other program, we are discouraged by the fact that government is seemingly issuing new guidance in many aspects of the H-1B program without notice.  Furthermore, we are discouraged by the fact that their new interpretations are being followed inconsistently, to the detriment of legitimate H-1B employers, and are clearly causing excessive delays, uncertainty, and erroneous denials.

To qualify for H-1B status, one of the requirements is that an employer-employee relationship exist between the employer filing the H-1B application and the prospective H-1B employee.  The USCIS memo that was released today (Determining Employer-Employee Relationship for Adjudication of H-1B Petitioners, Including Third-Party Site Placements, Donald Neufeld, January 9, 2010) clarifies the definition of “employer-employee relationship” and what type of documentation can be used in order to prove that this relationship exists.  The memo states that the employer-employee relationship exists when the petitioner has the “ability to hire, pay, fire supervise, or otherwise control the work of any such employee” and the petitioner must be able to establish that it has the right to control when, where and how the beneficiary performs the job.

The memo lists a variety of documentation that can be used to prove that this relationship exists, and clearly states that the government will look at the totality of the circumstances (with no one factor being decisive).  In order to make this determination, the memo indicates that adjudicators will look to the following criteria:

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 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)  Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

The government provides an example of an IT Consultancy Firm that hires an H-1B employee to work as a computer analyst and the Consultancy Firm contracts the employee to a third-party company to fill a core position to maintain the third-party company’s payroll.  In this scenario, the government indicates that the required employer-employee relationship does NOT exist.  The memo indicates that there is no qualifying relationship due to the fact that specific position was not outlined in contracts between the IT Consultancy Firm and the third-party client company; that the H-1B employee reported to a manager who worked for the third-party company; that the H-1B employee did not report to the IT Consultancy Firm for work assignments (but instead received them from the third-party company); the IT Consultancy Firm did not have control over how the H-1B beneficiary completed daily tasks; that the end-product that the H-1B employee worked on did not relate to the IT Consultancy Firm’s line of business; and that progress reviews were completed by the client company.  Many of these factors are typical in Computer Consultancy contracts, which is a great cause of concern.

Of additional concern is the requirement that the employer must document that the employer-employee relationship will exist for the duration requested on the H-1B application, and that an itinerary covering the entire period requested needs to be provided with the H-1B application.  Typically, IT Consultancy Firms assign employees to short-term projects and do not know which specific project the employee will work on once the initial project is complete.  Even if the IT Consultancy Firm is well-established with years of consistently placing employees on projects (without benching employees), that fact is that consultancy companies typically cannot determine exactly where an employee will be in two or three years.

These new developments are frustrating and could severely limit consultancy firms from utilizing the H-1B program.  We encourage you to contact us with any questions and will provide updates as they become available.

Some good news – Congress expands rights of survivors

January 12, 2010

In all the frustration we experience every day with the immigration system, it is nice to report a positive development.  The Department of Homeland Security Appropriations Act for FY2010 included a provision expanding the rights of immigrating survivors when the petitioner or principal alien dies during the immigration process.

The immigration law has long provided survivor benefits for widows and widowers of U.S. citizen sponsors if they had been married two years or more before the sponsor’s death.  However, many egregious injustices resulted from this arbitrary two-year cut off.

In the last year or so, courts in several jurisdictions held that this “widow penalty” was unenforceable, making what should have been a consistent rule different depending on the State in which the widow(er) lived.

Congress finally fixed the problem, and surprisingly fixed some other problems at the same time, including providing survivor benefits under employment-based applications in some instances.

Here’s how it works:

  • For widow(er)s who have been married two years at the time of the U.S. citizen spouse’s death: The rule does not change.  As before, the surviving spouse must file a self-petition (I-360) within two years of the death (although as discussed below, a pending I-130 filed by the spouse who is now deceased may be automatically converted).
  • For widow(er)s who have been married less than two years at the time of the U.S. citizen spouse’s death:  They now may file the I-360 self-petition to immigrate based on the marriage within two years of the spouse’s death.  However, if the spouse died before enactment of this law (October 28, 2009) this petition may be filed within two years of enactment of the law (or by October 27, 2011).  This gives the spouse more time to file, but it is a deadline that must be kept in mind.
  • For those with an I-130 petition for immigrant relative pending before the spouse’s death:  That petition can be considered automatically converted to an I-360.  However, the widow(er)s must be aware of the law’s deadlines and not rely on automatic conversion.
  • No substitute Affidavit of Support is required under this part of the law.  However, the widow(er) must prove to USCIS that he/she (and any accompanying children) is not likely to become a public charge.
  • The I-360 may be filed concurrently with an application for Adjustment of Status (Form I-485) if the widow(er) is physically present in the United States or the widow(er) may consular process if he/she is residing abroad.
  • For widow(er)s who have remarried:  They are prevented from self-petitioning under this part of the law (§568(c)), but the other part of the law (§568(d)) may allow them to apply if an I-130 petition was filed before the spouse’s death and a qualifying substitute Affidavit of Support sponsor can be found.
  • For children of the widow(er):  Unmarried children under 21 may be included on the I-360 filed by the parent.  Children over 21 may be included in certain situations if they qualify under the Child Status Protection Act (if another petition – usually an I-130 – was filed before the child turned 21 and certain other conditions exist).  Children may not self-petition.
  • For “immediate relatives” of a deceased U.S. citizen: The second part of the law (§568(d)) allows spouses, parents, and minor children of deceased U.S. citizens who had filed an I-130 on behalf of their relatives to have the petitions adjudicated (including related I-485 applications) “notwithstanding the death” of the U.S. citizen if they resided in the United States at the date of death and continue to reside here.  Note that residence is not always the same as physical presence, but is usually defined as “domicile”.  This is an expansion of the law that is an unexpected benefit.
  • For family preference relatives: This same section also provides survivor benefits to “preference” system relatives, including unmarried sons and daughters (over 21) of U.S. citizens, married sons and daughters of U.S. citizens, spouses or children of U.S. permanent residents, unmarried sons and daughters of U.S. permanent residents, and brothers and sisters of U.S. citizens.  Again, they must reside in the United States at the date of death and continue to reside here.
  • For employment-based dependents: They are also covered if the principal applicant (spouse or parent) dies before the employment-based immigration process is completed.  Again, they must reside in the United States at the date of death and continue to reside here.
  • For refugee/asylee relative petition beneficiaries and asylees: They are also covered on the same basis if the principal (sponsoring relative who was granted refugee status or asylum) dies.
  • For “T” and “U” visa applicants: They are also covered on the same basis.
  • A substitute Affidavit of Support is required under §568(d) from a qualifying sponsor, who must be related in certain ways or be a legal guardian of the beneficiary.
  • For those with other “related applications”: Section 568(d) covers the “petition” (I-130 or I-140) and application for adjustment of status (I-485) “and any related applications” to be “adjudicated notwithstanding the death of the qualifying relative”.  This may mean that waivers of inadmissibility (I-212 or I-601) are included and should be adjudicated despite the qualifying relative’s death.  However, USCIS is given discretion to deny any case in any situation that would not be in the public interest.
  • For those with relatives who died before the law was enacted: The law does not prevent retroactive application.  We are hopeful that it will be considered to apply to all deaths before the date of enactment if the other requirements are met.

This law is great news for many people who not only suffered the loss of a loved one but also the loss of their ability to immigrate.  Thank you, Congress and all who worked tirelessly to pass this law.


%d bloggers like this: