2/18/2010 - USCIS Clarifies Certain Aspects of the January 2010 Neufeld Memo on Employee Control in the H-1B Context
There has been a large amount of speculation and fear surrounding the issuance of the January 8, 2010 memorandum from Donald Neufeld. One major question has been whether the USCIS intended to cast a negative light on H-1B filings by staffing companies, by suggesting that such companies do not qualify as "employers" for H-1B purposes. To address these concerns, USCIS held a public "Collaboration Session" on February 18, 2010. During the session, business owners, attorneys and members of the public raised their concerns about the memorandum. The USCIS officials did not address most of the points raised, as the purpose of the session was for USCIS to get a sense of the public's concerns and then to decide on any requisite policy changes. However, USCIS leaders did note a few important points:

• The purpose of the Neufeld Memorandum was not to target IT companies or to put an end to the consulting/staffing business model.
• The memo, which took around a year to formulate, was not issued as a response to allegations of widespread fraud in the H-1B program.
• The memo's purpose was to create a uniform policy regarding employers/employees, and thereby put an end to the inconsistent RFEs and denials that have been issued by the Service Centers on this topic.
• Since the issuance of the Neufeld memo, all H-1B denials have required supervisor approval prior to being issued. Normally supervisor approval is only required in Motions to Reopen (MTRs). This policy was instituted by USCIS headquarters to avoid improper denials based on a misinterpretation of the Neufeld memo.
• As we predicted earlier, recent turnaways by CBP officers of H-1B visa holders at Newark and other ports of entry have not been caused by the issuance of the memo. Those cases involved suspected fraud by the H-1B petitioner or the employee.

1/15/2010 - USCIS Explains its Current Policy Vis-a-vis United States Employers; IT Consulting Firms Possibly Affected
The USCIS has released a memorandum clarifying its position on employer-employee relationships in the H-1B context. More specifically, the memorandum explains the USCIS's interpretation of "United States employer," which is a term that is defined at 8 C.F.R. Sec. 214.2(h)(2)(i)(A). USCIS will determine whether a particular petitioner qualifies as a United States employer on a case-by-case basis, taking into account a number of common law factors. Basically, the touchstone of employment is control over the manner and means by which work is performed. The factors specified in the memo are similar to the factors used by the IRS in determining whether a worker is an employee or an independent contractor. The practical significance of the memorandum is two-fold. First, USCIS has slyly avoided precedent decisions allowing so called H-1B "self petitions." Under the current interpretation, a proprietor of a business will no longer be able to sponsor himself/herself for an H-1B visa through the company since there is no true control by the company over the individual. Secondly, the memo states that IT consulting companies that place their payroll employees at third party sites may need to establish that they qualify as U.S. employers (within the meaning of 8 C.F.R. Sec. 214.2(h)(2)(i)(A)) on a case-by-case basis. Notably, the FAQ to the memorandum explicitly states that it "does not change any of the requirements for an H-1B petition" (emphasis added). There are certain steps that employers can take to strengthen the kind of evidence that would be provided in response to an RFE questioning employer control. Also, the memorandum does not address qualification by IT consulting companies under the regulation for agents. Stay tuned for future updates on this compelling development in the H-1B arena. … [link 1] … [link 2]

12/3/2009 - USCIS Issues Memorandum Explaining Its Policy on Agent-Petitioners in O and P Visa Cases
The relevant O and P regulations allow a bona fide agent to petition on behalf of an O or P employee who will work for multiple employers, as long as an itinerary listing all actual employers is provided. It has been common practice in such cases for the first employer to file on behalf of the individual and list the other employer(s) on the itinerary. USCIS has issued a policy memorandum (a public document that has USCIS officers and personnel as its intended audience) on this issue. Significantly, the memo has clarified that a petitioner will be deemed to be "in business as an agent," even if only for that specific visa petition. The memo also enumerates the kind of evidence that would satisfy the "in business as an agent" requirement. This evidence can include contracts, fee arrangements, or certifications from other employers listed in the itinerary that the the petitioner has been authorized by them to serve as their agent. The memorandum further cautions that petitioners for a P visa under the "U.S. sponsoring organization" category must not directly employ the P-1, P-2 or P-3 alien, but rather must assume responsibility for the accuracy of the terms and conditions specified in the petition. … [link]

10/29/2009 - Congress Passes Appropriation Bills for DHS - EB-5 Pilot Program Extended
The Congress has passed Department of Homeland Security Appropriations bill (P.L.111-83), which was signed into law by President Obama. Notably, this law extends the EB-5 Pilot Program until September 30, 2012. Under the Pilot Program, prospective investors can invest into accredited, existing businesses called Regional Centers for somewhat easier EB-5 processing. The Regional Center program had been in limbo since October 1, 2009, when the previous appropriation for the program expired. The new law also extends the Conrad 30 program, which is useful for those seeking J-1 waivers, and extends the non-minister religious workers category. Finally, the law allows USCIS to continue processing green card applications for dependents even when the principal beneficiary dies during the adjudication. Previously, such a death dealt a doubly-tragic blow to affected dependents as their GC status was put in jeopardy by the principal's death. … [link]

10/13/2009 - USCIS Clarifies O and P Visa Filing Procedures for Agents
O and P visas apply to non-immigrants with extraordinary ability in the sciences, arts, education, business or athletics, or in the motion picture and television field. O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Often, an O or P employee will work for multiple employers during his/her stay in the United States. The relevant regulations allow a bona fide agent to petition on behalf of such a person, as long as an itinerary listing all actual employers is provided. The Service has found that in some cases involving multiple employers for an O or P employee, the first employer will file on behalf of the individual and list the other employer(s) employer on the itinerary. CIS has clarified that only a company that is “in business” as an agent can do a filing on behalf of multiple employers. This policy statement creates uncertainty as to how a company can prove that it is "in business" as an agent to the satisfaction of a particular USCIS adjudication officer. … [link]

8/13/2009 - USCIS Amends Procedure for Case Status Inquiries
Until recently, the only way to check on the status of a pending case that was taking beyond the normal processing time was to call the USCIS's National Customer Service Center (NCSC) at 1-800-375-5283. USCIS has amended this procedure to allow concerned customers or their representatives to email the applicable Service Center directly if the issue has not been resolved and more than 30 days have passed since the NCSC was contacted. There is also the option to email the USCIS Headquarters Office of Service Center Operations if there is no response from the Service Center within 21 days. … [link]

7/2/2009 ICE Steps Up Enforcement of Form I-9s
United States Immigration and Customs Enforcement (ICE) announced that on July 1, 2009, 652 businesses nationwide were issued Notices of Inspection (NOIs) for I-9 audits. This number is greater than the total number of I-9 audits conducted all of last year. ICE and the Department of Homeland Security have recently been promising greater enforcement of immigration-related regulations, and so this move is not unanticipated. DHS has increased the number of its staff that is dedicated towards fraud prevention and immigration compliance. Accordingly, all employers are encouraged to conduct Form I-9 self-audits to be prepared for an inspection by ICE should one occur.… [link]