7/26/2010 - USCIS Provides Update on the FY2011 H-1B Cap Count
USCIS has confirmed that as of July 23, 2010, it has received approximately 26,000 petitions towards the FY 2011 H-1B cap of 65,000. 11,300 petitions have been filed under the U.S. Master's exemption allocation of 20,000. … [link]

6/10/2010 - USCIS-FDNS Site Visit Statistics Released
The USCIS's Office of Fraud Detection and National Security (FDNS) has released statistics and basic information on the investigations that have been conducted between 7/29/2009 - 6/1/2010. During this time period, only 2 cases were referred to US Immigration and Customs Enforcement (ICE) for criminal prosecution. However, in 9% of the total 15,733 cases, the applicable Service Center issued a Notice of Intent to Revoke/Deny the approved petition due to some suspected technical violation or indication of fraud. Unfortunately, all site investigators are currently independent contractors, not government employees. Our experience has been that many investigators may be unfamiliar with immigration regulations and H-1B employers' actual responsibilities under the law. H-1B petitioners are reminded that they are constitutionally privileged with the right to have an attorney present during a site investigation. An H-1B employer under investigation should postpone answering questions until its attorney is present to help avoid unfair assumptions or misinterpretations by the investigator. … [link]

5/30/2010 - Employer Verification by USCIS under the VIBE System
USCIS's Office of Service Center Operations (SCOPS) handles the processing of employment-based immigrant and nonimmigrant petitions. As part of its processing, SCOPS determines whether the petitioning company in a particular case is a financially viable entity. Thus far, USCIS has relied on evidence provided by the petitioner to assess financial viability. While this has meant that petitioners are sometimes burdened by expansive Requests for Evidence (RFEs) regarding company information, at least this process has allowed petitioners to define the content and scope of the evidence considered. As part of an initiative called Verification Initiative for Business Enterprises (VIBE), USCIS is moving away from employer-supplied information for purposes of assessing financial viability. Instead, VIBE will utilize information collected about the petitioner by Dun & Bradstreet, a private data collection firm. During petition processing, companies will still be able to provide evidence of their own choosing in response to RFEs, but details that conflict with their D&B entries might be treated with greater scrutiny. Therefore, it is essential for all petitioners to check their D&B listings to ensure that all information is accurate. While D&B promises that companies can correct mistaken information in their D&B listings free-of-charge, it can take up to 30 days to register with D&B, and further time for adjust incorrect details. If a petitioner faces an RFE citing incorrect D&B information, that petitioner may not have enough time to edit its D&B listing and still respond to the RFE in a timely fashion. Accordingly, it is imperative for all employment-based immigrant and nonimmigrant petitioners to check their D&B listings for accuracy and to take the appropriate steps to correct errors. … [link]

3/26/2010 - Listening Session Held by USCIS Foretells Changes to Neufeld H-1B Memo
USCIS has recognized the public furor surrounding the issuance of its January 8, 2010 memorandum on employer control in the H-1B context. Today CIS held its second public session on the implications of the memo, this time focusing on contractors in the health care industry. Notably, USCIS officials stated that more formal guidance or possibly a revision of the memorandum was forthcoming. There was also a suggestion that rates of H-1B approvals have been unchanged since issuance of the memo. Perhaps most significantly, officials recognized that many adjudicators have been applying improper standards of evidence in their Requests for Evidence (RFEs). The proper evidentiary standard for nonimmigrant petitions is "preponderance of the evidence," which can be translated in layman's terms to "having just above a 50% chance of being true." In recent months many RFEs have requested "clear evidence" of eligibility, which is a higher and inapplicable standard. In other cases, the evidentiary standard is not stated, but the tone of the RFE and its ultimate disposition betray an overly exacting standard. USCIS headquarters will be issuing guidance to adjudicators at the Service Centers to treat RFEs as tools to help petitioners cure any deficiencies in their petitions, and not as de facto precursors to denials. … [link]

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]