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Monday, February 1, 2010
USCIS Increases Scrutiny of H-1B Employers
In
a January 8, 2010 memorandum, Donald Neufeld, the Associate Director of Service
Center Operations for U.S. Citizenship and Immigration Services (USCIS) issued
updated guidance clarifying the requirements for establishing the existence of the
type of “employer-employee” relationship necessary for an H-1B visa. While it applies to all H-1B cases, the
Neufeld memorandum focuses on the difficulties that arise in the context of independent
contractors, self-employment, and consulting
companies that place foreign workers at third-party worksites. It also describes the types of evidence that a petitioning
employer may use to establish the required employer-employee relationship.
The
Neufeld memorandum comes on the heels of an
announcement by USCIS of its intention to expand the Administrative Site Visit
and Verification Program (ASVVP). This
program is intended to verify the employment location, job duties, and salary
listed on the H1-B petitions of employers who employ foreign workers holding
H-1B visas. The verification process
will be conducted through onsite administrative visits to H-1B sponsoring
employers. USCIS plans to conduct 25,000
such visits in 2010, which is approximately five times the number of site
visits that were conducted in 2009.
Of
the various categories of available visas, the H-1B visa is often the only
option for U.S. employers seeking to hire foreign personnel. This classification allows persons who will
engage in “specialty occupations” to be admitted to the U.S. for a period of up
to three years. Extensions may be
obtained, but the allowable period of admission generally may not exceed a
total of six years.
An
employer who files a petition on behalf of a foreign worker seeking H-1B status
must not only establish the existence of an employer-employee relationship, but
must also demonstrate that the foreign worker is coming to the U.S. to work in
a “specialty occupation,” which is defined as “an occupation that requires…(A)
theoretical and practical application of a body of highly specialized
knowledge, and (B) attainment of a bachelor’s or higher degree in the specific
specialty (or its equivalent)” for entry into the field. See
8 U.S.C. § 1184(i)(1). Further, the
U.S. employer must obtain a certification from the Department of Labor (DOL)
that it has filed a labor condition application (LCA) for the occupational
specialty in which the foreign worker will be employed. The LCA requires the employer to make certain
attestations regarding, among other things, the prevailing wage for the
position and the effect of the foreign worker’s employment on the working
conditions of other similarly employed U.S. workers. To the extent that the LCA includes any
misrepresentations, the employer may be subject to fines and other sanctions.
In
order to prove the requisite employer-employee relationship to qualify for an H-1B visa, the petitioning
employer must establish that “it may hire, pay, fire, supervise, or otherwise
control the work of any such employee.” See 8 C.F.R. 214.2(h)(4)(ii). USCIS has traditionally relied upon common law
principles and two U.S. Supreme Court cases, Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318 (1992), and Gastroenterology Assoc. v. Wells, 538
U.S. 440 (2003), to determine whether such a relationship exists. Pursuant to these authorities, USCIS
evaluates whether the petitioning employer has the right to control when, where,
and how the foreign worker performs the job.
The
recent Neufeld memorandum stresses that for each H-1B petition, USCIS must
determine whether the U.S. employer has a sufficient level of control over the
prospective foreign worker. According to Neufeld's memorandum, USCIS will consider the following factors to determine whether an
employment relationship exists:
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(1)
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Does the petitioner supervise the foreign worker and
is such supervision offsite or onsite?
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(2)
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If the supervision is offsite, how does the
petitioner maintain supervision?
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(3)
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Does the petitioner have the right to control the
work of the foreign worker on a day-to-day basis if such control is required?
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(4)
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Does the petitioner provide the tools or
instrumentalities needed for the foreign worker to perform the duties of
employment?
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(5)
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Does the petitioner hire, pay and have the ability
to fire the foreign worker?
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(6)
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Does the petitioner evaluate the work product of the
foreign worker?
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(7)
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Does the petitioner claim the foreign worker for tax
purposes?
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(8)
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Does the petitioner provide the foreign worker any
type of employee benefits?
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(9)
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Does the foreign worker use proprietary information
of the petitioner in order to perform the duties of employment?
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(10)
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Does the foreign worker produce an end-product that
is directly linked to the petitioner’s line of business?
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(11)
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Does the petitioner have
the ability to control the manner and means in which the work product of the foreign
worker is accomplished?
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The Neufeld guidance further states that the existence of
the requisite employer-employee relationship will be evaluated based on the
totality of the circumstances, with no one factor being decisive.
The
trend towards stricter guidelines and increased site visits is part of an
effort to improve immigration enforcement by shifting the focus from
undocumented workers to employers. Thus,
employers must be prepared to comply with these stricter guidelines and to face
potential site inspections.
For more information about potential site inspections,
the LCA process, and H-1B or other employment-based visas, please contact
Kindall C. James in the New Orleans office at kjames@liskow.com or go to www.liskow.com.
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