On March 12, 2012 USCIS revised the FAQs that reference the Jan 8, 2010 Donald Neufeld Memo that relates to the employer-employee relationship in adjudicating H-1B Petitions for 3rd Party Jobsite Placements. This topic is still very complex and greatly impacts the IT, healthcare and staffing agency industries in their ability to file for H-1B visa petitions on behalf of foreign professionals.  We link above to this updated guidance, and  remind you that our office is available to assist you with your H-1B case filings as it relates to these and other industries. If you have any questions pertaining to this topic or any other matter, please contact us.

At the American Immigration Lawyers Association (AILA) 09/2010 Stakeholder Conference, the Vermont Service Center (VSC) advised that if compliance issues arose during the previous H-1B approval period, VSC could request evidence of all work performed during the previous H-1B approval period on requests for extension cases. VSC also confirmed that they are issuing one-year approvals where third-party work assignment is documented for less than one-year.

In light of the increase in RFEs focused on the employer-employee relationship, right to control, and availability of “qualifying employment” at third-party worksites, it is suggested that the following practice pointers be utilized in order to maximize the likelihood of securing a three-year H-1B extension for petitions involving placement at third-party worksites:

1. Submit a certified labor condition application (LCA) that lists multiple work locations, including the Petitioner’s home office address, as well as the third-party worksite location(s);
2. Document “qualifying employment” for the Beneficiary at the third-party worksite through End-Client letters confirming a project duration of longer than a year, preferably for the entire three years if the requested validity is three years;
3. End-Client letters should specify the job duties for the Beneficiary at the worksite, duration of the project, supervisor’s name, and supervisor’s telephone number. It is critical to establish that the Beneficiary is an employee of the Petitioner and that the Petitioner retains the ultimate “right to control” the Beneficiary;
4. Provide evidence of “qualifying employment,” such as: contracts, statement of work, work order between Petitioner and End-Client (if there are intermediate vendors involved, offer the entire chain of contracts between the Petitioner and End-Client); and
5. Submit Employee Handbooks as evidence of “Employer-Employee relationship” and “right to control.” Petitioner’s Employee Handbook should include issues such as salary, benefits, payroll procedures, performance evaluations, project progress review procedures, supervision of beneficiary’s work, right to hire/fire, etc. All of the previous stated items for the Petitioner’s Employee Handbook are requirements identified in the January 8, 2010, Neufeld Memo (AILA Doc. No. 10011363).

Immigration Solutions is available to assist you with with your H-1B case filings. Please contact us here

In light of the recent controversial USCIS 19-page January 8, 2010 memo where USCIS takes a very strident and restrictive position on staffing agencies as employer/petitioners, we find it particularly disconcerting to learn that there are 200,000 contract employees working at the DHS, more than the 188,000 “civilian” workforce.

In a letter sent to the agency’s Secretary Janet Napolitano, Lieberman and Collins said the figure “raises the question of whether DHS itself is in charge of its programs and policies, or whether it inappropriately has ceded core decisions to contractors.”

Napolitano is slated to appear before the Senate committee and is expected to face questions on the subject. The senators want a unit-by-unit breakdown of where in Homeland Security the contractors are working and have asked for assurances that contractors are not performing “inherently governmental work.”

Clark Stevens, a spokesman for Homeland Security, told CNN Tuesday that “Secretary Napolitano has been strongly committed to decreasing the department’s reliance on contractors and strengthening the federal work force” at Homeland Security.

“Over the past year, we have been actively converting contractor positions to government positions and will continue to build on these efforts at an even more aggressive pace this year. We are working across the department to identify and make additional conversions as quickly as possible while sustaining the work force required to carry out our critical mission,” Stevens said.

How ironic could this possibly be?!  We will keep you posted.  For the story on CNN