H-1B petitions- Establishing relationship between Employee and Employer

US Citizenship and Immigration Services (USCIS) has issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship, to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements:  Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, it also discusses the types of evidence that petitioners may provide to establish that an employer-employee relationship exists, and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Questions & Answers

Q:  Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A:  No.  This memorandum does not change any of the requirements for an H-1B petition.  The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.  In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q:  What factors does USCIS consider when evaluating the employer-employee relationship?

A:  As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary.  Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q:  What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A:  You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q:  What if I cannot submit the evidence listed in the memorandum?

A:  The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment.  Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents.  You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists.  You should explain how the documents you are providing establish the relationship.  Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q:  What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A:  If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE.  You should explain how the documents you are providing address the deficiency(ies) raised in the RFE.  Adjudicators will review and weigh all evidence based on the totality of the circumstances.  Please note that you cannot submit similar evidence in place of documents required by regulation.

Q:  Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q:  What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A:  Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition.  The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own).  Such exceptions would be limited and made on a case-by-case basis.

Q:  What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification?  Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A:  No.  The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment.  All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location.  Do I need to submit an itinerary in support of my petition?

A:  Yes.  You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location.  Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q:  What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE).  However, failure to provide this information with the initial submission will delay processing of your petition.



Wipro, Microsoft, Intel, and Infosys take up the most H-1B visas in 2009

Even though job losses in the US are mounting, employers have stepped up the hiring of skilled workers from abroad, according to data from the US Citizenship and Immigration Services. The acceleration in recent weeks has put companies close to exhausting the 65,000 visas allotted each year for foreign workers under what's known as the H-1B program. Some 61,500 visas had been used as of Dec. 8, and the last visas are likely to be claimed within the next few weeks. Once that happens, companies won't be able to use the program to bring in additional workers until October, the start of the government's fiscal year.
"The numbers are surprising, considering the state of the economy," says Ron Hira, associate professor of public policy at Rochester Institute of Technology. "With 15.4 million people unemployed in the U.S., employers should be able to find qualified workers here." The H-1B program allows employers to sponsor skilled workers from overseas for up to three years, with the possibility of extending for additional years.


The mix of companies receiving work visas is changing in ways that could dull at least some criticism of the program. In past years outsourcing companies, including many based in India, have taken up a substantial chunk of the visas. That's led opponents to charge that the program was being used to send American jobs abroad, since many H-1B employees train at client sites in the U.S. and then rotate back to their home countries to handle similar tasks. But the number of visas received by many non-U.S. outsourcers is declining. Of the top 200 recipients of H-1B visas in fiscal 2009, ended in September, offshore outsourcers got about 22%, or 5,663, compared to 38% in fiscal 2008.
Non-U.S. outsourcers still claimed 6 of the top 10 places in fiscal 2009, although the numbers were off for the largest operators. India's Infosys Technologies (INFY) topped the list in fiscal 2008, with 4,559 visas, but last year got only 440. Wipro (WIT) was the largest visa recipient in 2009, with 1,964, down from 2,678 in 2008. Sridhar Ramasubbu, Wipro's chief financial officer for international operations, says the drop is the result of lower demand caused by the recession and changes in the company's workforce. "We're now operating in 58 countries," he says.
U.S. companies have become more active in the program. Of the top 200 recipients in 2009, American businesses accounted for 49% of the visas, up from 43% in 2008. Microsoft (MSFT) was No. 2, with 1,318 approvals, while Intel (INTC) ranked No. 3 with 723. The chip giant says it's using the visas to recruit for high-skill posts in software and component design. "We only use visas for job categories with a (domestic) skills shortage," says spokeswoman Lisa Malloy.
With the Obama Administration struggling to create jobs, politicians are debating whether the visa program needs fundamental change. On Nov. 19, Senators Bernie Sanders and Charles Grassley introduced a bill to bar major companies that lay off U.S. workers from hiring foreign labor through H-1B and other programs. The legislation, which faces significant hurdles, would apply to companies that have cut 50 or more employees within the past year. "We have a responsibility to ensure that companies do not use the temporary guest-worker program to replace American workers with cheaper labor from overseas," says Sanders.



For visitors to the US, ESTA rule takes affect

A new system of checks on all US-bound air passengers from the UK has come into force, with all travellers required to complete an online form before leaving.
The Electronic System for Travel Authorisation form (ESTA), which takes up to 72 hours to be approved, gives flyers prior approval for entry to the US.
It replaces the green I-94 card which passengers have previously filled in on their flight into the US. The scheme first came in a year ago but is now mandatory for all travellers to the US.
The ESTA form applies to all the 35 countries with US "visa waiver" status. An approved ESTA is valid for two years and can be used for multiple entries into the US.
Most people who fill in the form should receive approval from the US Department of Homeland Security within a few minutes. But British Airways and American Airlines Major are advising travellers to apply at least 72 hours in advance, to be on the safe side.
Both airlines have said people without valid ESTA forms will not be allowed to board any flights to the US.
The scheme is currently free but this may change as the US Senate voted in September to charge visitors from visa waiver countries a minimum of $10 (£7) to fill in the form and enter the country. The EU has criticised the Esta scheme, and it has received widespread criticism from all quarters.
The scheme was introduced in January 2009 but is mandatory from January 20, 2010. Airlines had feared the new rules could cause chaos at British airports but say the phased introduction should reduce problems. About four million Britons visit the US each year, so it is expected to have a huge impact.



Haitian immigrants in the US- Details of Temporary Protected Status

Federal permission allowing illegal immigrants from Haiti to stay in the US, given last week, came with a requirement that many might find hard to meet. The immigrants must be able to show that they were in the United States when the Jan. 12 earthquake struck their nation.
Today, immigration officials outlined how Haitian immigrants here illegally, many of whom lack official paperwork, can try to show they were here before the earthquake. They can submit documents such as affidavits from relatives testifying to their presence, letters from employers, medical bills, and baptismal certificates, the officials said.
"More is better," said Russell Owen, chief of staff for the New Jersey district of U.S. Citizenship and Immigration Services. "Whatever documents they can provide to us for us to review for possible adjudication, submit."
In a national conference call and during meetings across the country, Owen and other immigration officials today reviewed the ins and outs of post-earthquake rules affecting Haitian immigrants. They offered other tips on applying for the "temporary protected status" that lets illegal immigrants stay at least 18 months; warned applicants to beware of unqualified scammers offering legal help; and stressed that Haitians who arrive here after the earthquake will be sent back.
The United States now grants temporary protected status (TPS) to qualifying citizens of six countries — Haiti, El Salvador, Honduras, Nicaragua, Somalia, and Sudan — devastated by natural disasters, military conflicts and other problems. TPS allows illegal immigrants from a country to remain in the United States for 18 months, though the status is often renewed if conditions do not improve in a country. Those eligible for TPS do not automatically receive it. They have to apply for it. A total of between 100,000 and 200,000 people are expected to file for TPS.
Owen urged people who think they need help filling out their application to either hire an attorney or consult reputable community organizations. He warned against scammers who charge high fees and pretend to be knowledgeable about application procedures.
Reputable organizations, he said, "will not charge exorbitant fees and will process the applications properly and efficiently."
Immigration officials warned that anyone who arrives in this country illegally after the Jan. 12 earthquake will be slated for deportation.
"It’s very important to communicate that," Alejandro Mayorkas, director of U.S. Citizenship and Immigration Services, told community organization leaders in Newark and other cities yesterday, in a conference call. "Because from our experience the effort to leave Haiti by sea on one’s own is both dangerous and life-threatening. We’ve seen a lot of lost lives in these kinds of tragedies caused by that. And we will ... as a department repatriate those (Haitians.)"



More than 6,000 citizenship candidates to be naturalized

U.S. Citizenship and Immigration Services (USCIS) will commemorate the 81st birthday of Dr. Martin Luther King, Jr. by welcoming more than 6,000 new citizens at citizenship ceremonies throughout the US and overseas for the week of Jan.15 through 22. Special ceremonies will embrace the theme, “Enriching the American Dream: The Celebration of a Legacy."
“We in U.S. Citizenship and Immigration Services assist individuals who come to our country to experience the hope and opportunities that Dr. King helped define," said USCIS Director Alejandro Mayorkas. “It is an honor to recognize our new citizens, and what our country means to them, on the day that we honor Dr. King's legacy. It is a legacy that our new citizens will now help carry forward."
USCIS’ celebration of citizenship is highlighted by various special events, starting Jan. 15 with a ceremony at the King Center in Atlanta, Ga. with Elder Bernice A. King, the daughter of Dr. King.
This event will be followed by a Jan. 18 event with a special ceremony at the Martin Luther King, Jr. Memorial Library in Washington, D.C., during which General Colin Powell, U.S. Army (Ret.) will deliver keynote remarks.
The events will culminate Jan. 22 at a ceremony in Providence, R.I. with Mr. Clifford Monteiro, President, NAACP Providence Chapter, who worked with Dr. King during the Civil Rights Movement. During these ceremonies, USCIS will honor Dr. King’s legacy of justice, democracy and hope.
It is a legacy that continues to enrich the lives of Americans to this very day.
USCIS will also hold a naturalization ceremony for service members at Yongsan Army Garrison in Seoul, South Korea.



Mason poses as GM to obtain a US visa

The Indian police have arrested a mason who posed as the general manager of a fictitious construction company at the US Consulate officials in Chennai to get a tourist visa.
S Joy (42), a native of Ernakulam (Kerala), walked into the US Consulate General's office on Monday after booking an appointment for a visa interview. The official concerned suspected Joy's credibility when he fumbled on questions relating to the company where he claimed to be working as the General Manager. On being grilled further, he spilled the beans, and told them that he was a mason.
Joy worked as a mason with a private builder in Ernakulam. He wanted to pursue his vocation in the US. In Ernakulam, he approached a travel agent, Sunil, who warned him that the Consulate would not grant him the visa if he applied for a tourist visa and mentioned his occupation as ‘construction labourer'. Sunil then forged the documents for Joy, creating a fictitious company where Joy was the GM. He was arrested by Royapettah police.



Immigration reform can hike the US GDP by $1.5 trillion over a decade

A new reposrt by the Center for American Progress says that an overhaul of U.S. immigration laws would increase the country's gross domestic product (GDP) by $1.5 trillion over the next ten years.
Providing a path to legal residence for the roughly 8 million illegal immigrants currently residing in the U.S. would lead to higher wages for both, them and other U.S. workers, increase tax revenue and result in a higher consumption by immigrants, the report concluded.
The $1.5 trillion figure is reached by a calculation that an immigration overhaul would increase U.S. GDP by 0.84% annually.
The study considered three scenarios: one where comprehensive immigration law changes are implemented; a second where only a temporary worker program is created and a third where massive deportations of illegal immigrants is pursued. The second would increase U.S. GDP by $792 billion over the next decade, while the third would cost the economy $2.6 trillion over the same period.
The report looks at the economic impact that followed the last time a significant immigration shake-up was concluded in 1986 during the Reagan administration as a basis for its findings of what would occur as a result of an overhaul of immigration laws this year.
The Center for American Progress is one of the many groups strongly pushing the administration to pursue immigration changes this year rather than waiting until 2011 after the mid-term elections in November 2010.
"The imperative is both a political one because of the elections, and a policy one because of the economics," Angela Kelley, vice president for immigration policy at the Center, said Thursday.
Immigration legislation was introduced in the House in December that has the backing of many liberals in the Democratic caucus. But given the difficulty of passing major legislation through the Senate, it is expected that any effort to tackle the immigration issue will begin there.
Given the bruising experience that the drive for sweeping health-care legislation has been for both the administration and congressional Democrats, there is some talk that they may not have the appetite for another significant fight before the November elections of 2010.



US government lifts 22-year-old HIV immigration ban

The United States government has changed a 22-year-old rule, lifting the mmigration ban which has stopped anyone with HIV or AIDS, from entering the country.
President Obama has said that the ban is not compatible with US plans to be a leader in the fight against the disease.
The ban was imposed at the height of a global fear about the disease, towards the end of the 1980's.
The ban had clubbed the United States with a group of just 12 countries, including Libya and Saudi Arabia, which excluded the entry of anyone suffering from HIV/AIDS.



Recent study: Most H-1B holders are from India, and under 35

The U.S. has finally reached the 85,000 H-1B visa cap late December thanks to a fourth quarter spike in demand.
And, according to data recently released by the AFL-CIO labor union, most of the visa-holders are less than 35-years-old and most likely come from India. About half os these work in computer-related occupations. The AFL-CIO compiled its numbers from a number of U.S. Citizenship and Immigration Service (USCIS) reports showing the breakdown of the H-1B visa users.
Since the H-1B cap has been reached for the fiscal year, the USCIS now won't accept new visa applications until April 1 for fiscal 2011, which begins on Oct. 1.
The government data studied by the AFL-CIO covers a number of years through the 2008 fiscal year and shows a largely consistent pattern of visa usage. For example, 54% of 2008 visa recipients were from India, close to the percentage from the past several years, according to the USCIS reports. Two thirds of H-1B petitions approved in 2008 were for workers between the ages of 25 and 34, compared to 48% in 2007 and 66% in 2006.
The relative young age of the H-1B petitioners is likely to reinforce the concerns of visa critics who contend that the pool of young of workers is helping to foster age discrimination in the IT workplace. Estimates by various industry groups puts the number of IT workers in the U.S. between 4 to 6 million people. The total depends on what occupational groups are counted.
Indian nationals are the dominant recipients of the H-1B visa. Of the total number of H-1B visas issued for initial employment in 2008, for instance, 61,739 were to workers from India, followed by 9,157, or 8.8%, from China. Canadians accounted for 3,968 visas or 3.9% of the total, and the Philippines, 3,957, or 3.5%.