ABCs OF H-1Bs (THIS IS PART I OF AN VIII PART SERIES):

WHAT PROSPECTIVE H-1B EMPLOYERS AND H-1B EMPLOYEES NEED 

By:  Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq.,

immigration lawyers at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. - VISASERVE (NJ, NY, Canada, and India).   

There are Only 58,200 Regular H-1B Visas: Do Not Delay - It’s Now Time to Strategize for the H-1B Season.

The current annual cap on the H-1B category is 65,000. All H-1B nonimmigrants are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program specifically designed for the citizens of Chile and Singapore. Unused numbers in H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1Bs visas are granted each year except 20,000 additional H-1B visas which are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities. 

U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions. Given that, in FY 2014, the H-1B cap was met by the first week of the filing period, it is imperative that employers file all new quota-subject H-1B petitions on March 31, 2014. Employers should immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA).  Thus, strategically strategizing the filing of H-1B Petition is a key to hiring an H-1B employee for the financial year beginning on October 1, 2014.

The H-1B Employer Must Exercise Sufficient Level of “Control” Over the Prospective H-1B Employee.

In order for the H-1B petition to be approved by United States Citizenship and Immigration Services (USCIS), Department of Homeland’s agency responsible for adjudication of H-1B petitions, petitioning employer must establish that employer-employee relationship exists and will continue to exist with the employee throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee.

Thus, the prospective H-1B petitioner organization must be able to establish that it has the “right to control” when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and USCIS considers various factors in making such a determination (with no one of the following factors being decisive with regard to the issue of “control”).

Both the Proffered Position and Prospective H-1B Employee Must Qualify for the H-1B.  

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for H-1B visa, it must be a “specialty occupation”.  “Specialty occupation” is an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further requires that a position also meet one of the following criteria, in order to qualify as a specialty occupation: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) The employer normally requires a degree or its equivalent for the position; or 4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, reading the law and regulations together, in order to qualify as a “specialty occupation,” a proffered position must 1) require theoretical and practical application of a body of highly specialized knowledge, 2) necessitate a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation, and 3) meet one of the four alternative criteria listed above.

For a prospective employee to qualify for the proffered H-1B position, regulations specify that s/he should have either one of the following: (1) Full state licensure to practice in the occupation (if required); (2) Completion of the degree required for the occupation; or (3) progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

The H-1B Filing Fee depends upon the Type and Size of H-1B Employer.  

Besides legal fee, the employer needs to pay the USCIS filing fee. Remember there is no flat fee that every employer is required to pay. The amount of H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee of $325.00 for the H-1B petition. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750 or $1500 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.

Sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employee. In all other cases, the employers need to pay $1500.00.  Employers such as institution of higher education; nonprofit organization or entity related to, or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee.  Additionally, employers, either seeking initial approval of H-1B or seeking approval to employ H-1B nonimmigrant working for a different employer, must pay $500 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.

Those H-1B employers required to submit the $500.00 Fraud Prevention and Detection fee are also required to submit $2,000.00 fee mandated by Public Law 111-230 if petitioners employ 50 or more employees in the United States; more than 50% of those employees are in H-1B or L nonimmigrant status; petition is filed before October 1, 2014. Further, either the employer or employee can pay an optional premium processing fee of $1,225.00 to expedite the adjudication of petition. Thus, the H-1B filing fee depends upon the size and type of employer and can range from $825.00 to $5,550.00.

Be Aware of the Salary and Costs to Be Paid by Prospective H-1B Employer.  

Prospective employer must obtain a certification from Department of Labor (“DOL”) that it has filed an LCA in the occupational specialty.  The employer attests on the LCA that H-1B nonimmigrant worker will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for occupational classification in the area of intended employment. Thus, Congress has been careful to build in safeguards to the H-1B program to ensure that H-1B foreign professionals do not undercut wages paid to the comparable U.S. workers. Additionally, employers are required to pay the costs for the petition process.

The Employer’s obligation to pay H-1B workers the required wages begins on the date on which the worker “enters into employment with the employer.” The H-1B worker is considered to “enter into employment” when he first makes himself available to work or otherwise comes under the control of the employer. Alternatively, even if the worker has not yet “entered into employment,” where the worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the worker becomes eligible to work for the employer. The H-1B worker becomes eligible to work for employer on the date set forth in the approved H-1B petition filed by the employer.

An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., benching because of lack of work, lack of a permit or license). Thus, employer is liable for nonproductive time as well as productive time once employee becomes eligible for work. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer is liable for “the reasonable costs of return transportation of the alien abroad

Note the Key Compliance Issues: Posting Notice of LCA & Maintaining Public Access files – Employers Beware of the H-1B Audit and H-1B Site Visit.  

Notice of the LCA must be posted, or where there is a union it must be given to the union before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted “in a least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed” and the notice “shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days.

Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the “occupational classification” for which H-1Bs are sought, through any means it normally communicates with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it need only be sent once; other electronic forms (e.g., home page) should be “posted” for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment listed on the LCA.

Additionally, an employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer’s principal place of business or at the worksite. An interested party is one that has “notified the DOL of his or her/its interest or concern in the administrator’s determination.”

The public access file must be available within one day after the LCA is filed with all supporting documentation including:  A copy of the completed LCA; Documentation which provides the wage rate to be paid; A full, clear explanation of the system used to set the “actual wage”; A copy of the documentation used to establish the prevailing wage;  Copy of the notice given to the union/employees;  and A summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).

This article is Part I in a series of VIII that will provide helpful and basic information to employers considering the use of the H-1B for an employee. For any additional H-1B information or for information about options for avoiding the H-1B cap, please feel free to contact the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at info@visaserve.com or by calling our offices at 201-670-0006 (x107). Our highly qualified immigration lawyers and immigration attorneys stand ready to assist employers with the H-1B nonimmigrant visa process.     

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GLOBAL ENTRY PROGRAM (CRAIG SANKO, DEPUTY CHIEF OF CBP)

Nachman Phulwani Zimovcak Immigration and nationality Lawyers interview the CBP Officers about GOES - The Global Online Enrollment System

The Global Online Enrollment System allows registered users to enter their own applications for U.S. Customs and Border Protection (CBP) Trusted Traveler Programs, and approved members to edit their information as needed (mistakes on the original application cannot be corrected once the application is certified - your mistakes will need to be brought to the attention of CBP during your interview). Once a completed application is certified by the applicant and the non-refundable payment is successfully processed, CBP will review it and determine whether or not to conditionally approve the application.

TO WATCH THESE VIDEOS. . . CLICK HERE

Part 1: http://www.visaservevlog.com/apps/videos/videos/show/16755416-global-entry-program-craig-sanko-deputy-chief-of-cbp-part-1

Part 2: http://www.visaservevlog.com/apps/videos/videos/show/16755434-global-entry-program-craig-sanko-deputy-chief-of-cbp-part-2

- Who is eligible (Nationals and Greencard Holders, Lawful Permanent Resident, Holders)

- Procedure for enrollment in the Global Online Enrollment System

- Mobile enrollment by CBP Officials

- Location for enrollment – Enrollment at TV Asia

- Time Saver to get through the Airport for travelers

Global Entry Program - Once a completed application is certified by the applicant and the non-refundable payment is successfully processed, CBP will review it and determine whether or not to conditionally approve the application.
Nachman Phulwani Zimovcak Immigration and Nationality Lawyers interview the CBP Officers about GOES - The Global Online Enrollment System

Once a completed application is certified by the applicant and the non-refundable payment is successfully processed, CBP will review it and determine whether or not to conditionally approve the application. If your application is conditionally approved, your GOES account will be updated to instruct you to schedule an appointment for an interview. Every individual who would like to apply for membership - children included and multiple applicants in one household- must create a separate account within GOES, submit a separate application, and schedule a separate interview appointment upon conditional approval

TO WATCH THESE VIDEOS. . . CLICK HERE


Part 1: http://www.visaservevlog.com/apps/videos/videos/show/16755366-global-entry-program-part-1

Part 2: http://www.visaservevlog.com/apps/videos/videos/show/16755374-global-entry-program-part-2

- Questions about GOES

- Airports that use global entry is 25 Airports and the number is expanding

- Onsite enrollment for GOES is fast and efficient – contact CBP to do this

- TSA pre-check for Global Entry Programs can be used for Domestic Travel

- No age restriction for an Application for GOES

- Processing time frames for enrollment in GOES

- Ineligibility for individuals with criminal convictions, immigration violations, agricultural violations

Entertainment Immigration visaserve-entertainment.com

NACHMAN PHULWANI ZIMOVCAK (NPZ) LAW GROUP - VISASERVE - BRINGING PEOPLE TOGETHER FROM AROUND THE WORLD FOR WORK IN HOLLYWOOD AND BOLLYWOOD.

Entertainment Immigration visaserve-entertainment.com
Immigration and Nationality Lawyers and Attorneys assisting with Visas, Immigration, Artists, H-1B3 visa, Entertainment Immigration, O-1 Visa, O-2 Visa, P-3 Visa, H1B3 Fashion Models etc.

THE DREAM IS BEING REALIZED: Obama Administration Announces Relief for DREAMers.

June 15, 2012 Ridgewood, NJ - We applaud today's announcement by the Obama Administration that it will grant deferred action to undocumented youth who were brought to the United States as small children and who have been raised and educated in communities around the country. Today's announcement builds on the prosecutorial discretion initiatives already undertaken by the White House and Department of Homeland Security (DHS) and was done to ensure that eligible young people do not fall through the cracks, that resources are used wisely, and that humanitarian factors are considered when enforcing our immigration laws.



Deferred action is not permanent legal status or citizenship but rather a way to allow those young people, who have been in this country since they were young, to complete their education, continue their military service or begin their careers. The grant of deferred action will be issued on a case-by-case basis and is renewable every two years.



Deferred action has long been available on an individual basis, but in certain compelling circumstances, past administrations have found it more efficient, predictable, and practical to designate a broader group of individuals who share common characteristics as presumptively eligible for deferred action.



Today's announcement will create the necessary space to allow Congress to craft a more permanent solution that will extend legal status to these young people who are American in all but their country of birth.



According to DHS, deferred action will be offered to young people between the ages of 15-30 who came to the U.S. before the age of 16 and have been in the country for at least five years, have no criminal history, and are in the country as of today.

Check out this article:

http://www.nj.com/news/index.ssf/2012/06/advocates_concerned_about_pote.html

Updates!

June 24th Seminar and Visa Bulletin Cut-off dates


http://www.youtube.com/watch?v=uO3fKvPRKXQ



1. June 24th Seminar

2. Visa Bulletin Cut-off dates

- 3-7 week jump for family based cases

- EB-2 current except for India which is unavailable

- EB-3 five week jump except for India with a one week jump

- Utilizing Spouses nationality through cross chargeability



Bollywood to Hollywood (Entertainment Immigration)


http://www.youtube.com/watch?v=9ZEZO0zzqvs



- History of representation of Bollywood actors & directors
- H-1B used to be used for performers
- Visas for Models, actors, directors and performers
- Obtaining opinion from union



Bollywood to Hollywood (Entertainment Immigration) Part 2


http://www.youtube.com/watch?v=y4_7sT-CkCw



- History of representation of Bollywood actors & directors
- H-1B used to be used for performers
- Visas for Models, actors, directors and performers
- Obtaining opinion from union



Myths (Something you have from Someone that is not true)


http://www.youtube.com/watch?v=ntLfG2tHHxY



http://www.youtube.com/watch?v=CfNCg6SZlZ8



A) - Verifying common myths that are not true (A person doesn't need much information to get a visa, one just needs to pay visa fees after interview and will be issued visa).

- False 214 (b) needs to be addressed

1. one needs to show family

2. articulation
3. change in circumstances



B) My B-1/B-2 visa has been denied 4 times under 214 (b) once I contact a senator and congressman I will receive my visa.

1. Congressmen intervention doesn't always help.

2. American Consule have sole power to issue visa's

3. Joined effort to make inquiry makes successed filing. Having more than one option helps.

4. If a case is genuise another chief officer can overide decision of previous offices.

C) F-1 visa denied 3 times financials are available and school is an IV league school. I want to appeal and file in federal court.

1. the consulate can't make a determination based on the type of college.

2. The intention of the person should be considered

3. look at different options such as H-1B to overcome 214 (b)

Sar Inbar explains the magic of Citi Pond at Bryant Park

Sar Inbar explains the magic of Citi Pond at Bryant Park

Entrepreneurial talent of exceptional ability

http://youtu.be/tPQ1SVk8N8w

H.R. 3012 – Fairness for High-Skilled Immigrants Act

H.R. 3012, the Fairness for High-Skilled Immigrants Act, introduced on September 22, 2011 by Rep. Chaffetz (R-UT), eliminates the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.

On 10/27/11, the House Judiciary Committee held a markup and H.R. 3012 was reported favorably out of committee by a voice vote. An amendment from Rep. Lofgren (D-CA) that would make adjustments to the three year phase-in period was accepted. H.R. 3012 must next be scheduled for House floor debate which may occur in the next few weeks.

On 11/29/11 the House passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.

USCIS launched the new E-Verify Self-Check feature

In March of this year, USCIS launched the new E-Verify Self-Check feature, an innovative service that allows individuals in the United States to check their own employment eligibility status before formally seeking employment. This voluntary, free, fast, and secure service gives users the opportunity to submit corrections of any inaccuracies in their DHS and Social Security Administration records before applying for jobs, thereby making the process more efficient for employees and employers. The Self Check service is currently available in both English and Spanish to users who maintain an address in 21 states and the District of Columbia. Self Check will be available nationwide by March 2012.

USCIS has continued to improve E-Verify's accuracy and efficiency, enhance customer service, and reduce fraud and misuse in a number of additional ways. To improve E-Verify's accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify. Because of this enhancement, in Fiscal Year 2011, more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as employment authorized. In June 2010, E-Verify launched improved navigational tools to enhance ease-of-use, minimize errors, and bolster compliance with clear terms of use. USCIS also has increased its staff dedicated to E-Verify monitoring and compliance, adding 80 staff positions to support monitoring and compliance since the beginning of Fiscal Year 2010. Finally, to more effectively address identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.


http://www.dhs.gov/ynews/testimony/20111026-napolitano-house-judiciary.shtm

VLOG - Immigration and Nationality Law - David H. Nachman, Esq. Mitchell Ignatoff, Esq. and Michael Phulwani, Esq.

Immigration and criminal law are two completely separate areas of law that are occasionally intertwined. Unfortunately for many immigrants, the potential immigration implications of a criminal conviction are often overlooked. A seemingly minor criminal offense can have devastating immigration implications. As a result, it is extremely important to be aware of any immigration implications when pleading to a criminal matter, or facing potential criminal penalties. In these segments, David Nachman, Esq. and Michael Phulwani, Esq. and Mitchell Ignatoff, Esq. discuss some of the immigration implications of a criminal convictions for nonimmigrants, green card holders and naturalization. In some cases, waivers may be available.


Immigration and Nationality Law Part 1 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)
http://www.youtube.com/watch?v=un0X3TjghBs

Immigration and Nationality Law Part 2 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)
http://www.youtube.com/watch?v=6t8VXkfHx3o

Immigration and Nationality Law Part 3 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)
http://www.youtube.com/watch?v=KM58a_JBN4c


Immigration and Nationality Law Part 4 (David H. Nachman, Mitchell Ignatoff, and Michael Phulwani)
http://www.youtube.com/watch?v=IfB6Z7bSLu4

On TV ASIA, U.S. Immigration Attorneys David Nachman & Michael Phulwani discuss various U.S. Immigration Law Updates:

1. Public Affair and Immigration Part 1 (David H. Nachman/Michael Phulwani)
http://www.youtube.com/watch?v=SdOzcZ-0Uiw

2. Public Affair and Immigration Part 2 (David H. Nachman/Michael Phulwani)
http://www.youtube.com/watch?v=bBe0nsSBK1Q

3. Public Affair and Immigration Part 3 (David Nachman/Michael Phulwani)
http://www.youtube.com/watch?v=hpVuHbB8hCs

4. Public Affair and Immigration Part 4 (David H. Nachman/Michael Phulwani)
http://www.youtube.com/watch?v=_EkDGN1yPKI

Notifying USCIS of a Change of Address Is Important

It is the sole responsibility of the applicant/petitioner to ensure USCIS has the correct address information on file. For example, USCIS expects to adjudicate 750,000 family-based petitions on or before December 31, 2010. Adjudication of these filings can result in Requests for Evidence (RFEs), and most correspondence sent by USCIS is not forwarded even if a change of address was filed with the U.S. Postal Service. Generally, USCIS denies cases as abandoned when a customer fails to timely respond to an RFE. To ensure that USCIS correspondence is sent to the right address, those seeking benefits must take affirmative steps to notify the agency of address changes.

For more information click check out this link: http://www.dhs.gov/files/publications/gc_1305649739320.shtm

Creative Solutions to Complex Problems
When traditional immigration approaches do not work, we analyze a candidate's resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs. Our staff of immigration law professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration law professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.

To schedule a consultation, please feel free to e-mail us at info@visaserve.com or call us at 201-670-0006 (x100).

THE NEUFELD MEMO REVISITED AND THE H-1B VISA CLIMATE: The New Face of Enforcement in the H-1B World.

As a result of increased site visits and a general inclination to decrease the number of H-1B’s approved, the U.S. Citizenship and Immigration Services ("USCIS") published a watershed memo on January 8th, 2010 (“the Neufeld Memo”). The Neufeld Memo radically changed the way that H-1B’s were adjudicated. The Neufeld Memo also put enormous pressure on employers to satisfy additional evidence requirements justifying any work performed by an H-1B visa holder off of the H-1B visa petitioner’s premises. Additionally, the Neufeld Memo added additional requirements for H-1B petitioners to obtain H-1B extensions. It is this author’s opinion that as a result of this Neufeld Memo, employers will see automatic requests for evidence in any case where the beneficiary may be performing offsite work and for any H-1B visa extension petition. It continues to be our strong recommendation that employers add a section to their H-1B petitions which cover the issues addressed by the Neufeld Memo. Even one and one half years after this Memo was promulgated.


USCIS is still concerned about whether or not there is a valid employer-employee relationship. The Neufeld Memo basically states that hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid "employer-employee relationship" for purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of "control" over the prospective H-1B employee. Clearly, if the employee will be working "on site" in the H-1B petitioner’s office, doing specific tasks for the petitioner, this will not be viewed as raising a "control" issue. However, with the publication of the Neufeld Memo, it remains our opinion that all employers need to address the "control" issue upon initial submission of an H-1B petition to the USCIS.


The prospective H-1B petitioner organization must be able to establish that it has the "right to control" when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and the USCIS will consider the following items to make such a determination (with no one of the following factors being decisive with regard to the issue of "control"):


(1) Does the potential H-1B petitioner supervise the prospective H-1B beneficiary and is such supervision off-site or on-site?

(2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?

(3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?

(4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?

(5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?

(6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?

(7) Does the petitioner claim the beneficiary for tax purposes?

(8) Does the petitioner provide the beneficiary any type of employee benefits?

(9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?

(10) Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?

(11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?


In addition to the foregoing, the USCIS provides specific examples of employment situations in which the "control" issue is not considered to be problematic. Please note that there are numerous variations of these scenarios and that each employment situation may not fit squarely into the examples provided by the USCIS.


The "Traditional Employment" Scenario:


If the prospective H-1B beneficiary works at an office location owned/leased by the prospective H-1B petitioner and the beneficiary reports directly to the petitioner on a daily basis, the petitioner sets the work schedule of the beneficiary, the beneficiary uses the petitioner's tools/instrumentalities to perform the duties of employment, and the petitioner directly reviews the work-product of the beneficiary. The petitioner claims the beneficiary for tax purposes and provides medical benefits to the beneficiary.


The "Temporary/Occasional Off-Site Employment" Scenario:

The prospective H-1B nonimmigrant petitioner is an accounting firm with numerous clients. The beneficiary is an accountant. The beneficiary is required to travel to different client sites for auditing purposes. In performing such audits, the beneficiary must use established firm practices. If the beneficiary travels to an off-site location outside the geographic location of the employer to perform an audit, the petitioner provides food and lodging costs to the beneficiary. The beneficiary reports to a centralized office when not performing audits for clients and has an assigned office space. The beneficiary is paid by the petitioner and receives employee benefits from the petitioner.

The "Long-Term/Permanent Off-Site Employment" Scenario:

The prospective H-1B nonimmigrant petitioner is an architectural firm and the beneficiary is an architect. The petitioner has a contract with a client to build a structure in a location out of state from the petitioner's main offices. The petitioner will place its architects and other staff at the off-site location while the project is being completed. The contract between the petitioner and client states that the petitioner will manage its employees at the off-site location. The petitioner provides the instruments and tools used to complete the project, the beneficiary reports directly to the petitioner for assignments, and progress reviews of the beneficiary are completed by the petitioner. The underlying contract states that the petitioner has the right to ultimate control of the beneficiary's work.


The USCIS has specifically stated that the following scenarios are now NOT acceptable to meet the "control" issue with regard to H-1B employment:


The "Self-Employed Beneficiaries" Scenario:


The prospective H-1B nonimmigrant petitioner is a fashion merchandising company that is owned by the beneficiary. The beneficiary is a fashion analyst. The beneficiary is the sole operator, manager, and employee of the petitioning company. The beneficiary cannot be fired by the petitioning company. There is no outside entity which can exercise control over the beneficiary. The petitioner has not provided evidence that the corporation, and not the beneficiary herself, will be controlling her work.


The above example (cited in the Neufeld Memo) is similar to a case recently addressed by our office for one of our clients. We have successfully processed a case such as this in the past. However, it is likely that these facts will inevitably lead to a much more complex H-1B case processing procedure by the government.


The USCIS admits that a sole stockholder of a corporation can be employed by a corporation as the corporation is a separate legal entity from its owners and even its sole owner. However, an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or her may not be able to establish that a valid employment relationship exists in that the beneficiary. The issue is whether the prospective H-1B nonimmigrant petitioner can establish the requisite "control".


The Neufeld Memo states that the Administrative Appeals Office ("AAO") correctly determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B nonimmigrant employees. However, the AAO did not reach the question of how, or whether, petitioners must establish that such beneficiaries are bona fide "employees" of "United States employers" having an "employer-employee relationship." While it is correct that a petitioner may employ and seek H-1B classification for a beneficiary who happens to have a significant ownership interest in a petitioner, this does not automatically mean that the beneficiary is a bona fide employee.


What we believe that the USCIS is saying is that if a corporation’s sole shareholder and sole employee is the H-1B nonimmigrant beneficiary, the case is likely to be denied. If the H-1B nonimmigrant beneficiary is one of several shareholders (not a majority shareholder of the corporation and is NOT the sole employee) then the USCIS can approve the case. It appears to be the case that any person who has a small company, where the H-1B beneficiary is one of the main officers or shareholders of the company, will have a very difficult time obtaining an H-1B approval. This was one of the new rules that came out of the Neufeld Memo. In addition, our office continues to find that prospective H-1B nonimmigrant petitioners which have approval of an H-1B already (that fit in this scenario) are likely to have difficulty extending the H-1B nonimmigrant professional and specialty occupation visa on a going forward basis.


The "Independent Contractor" Scenario:


The beneficiary is a sales representative. The prospective H-1B nonimmigrant petitioner is a company that designs and manufactures skis. The beneficiary sells these skis for the petitioner and works on commission. The beneficiary also sells skis for other companies that design and manufacture skis that are independent of the petitioner. The petitioner does not claim the beneficiary as an employee for tax purposes. The petitioner does not control when, where, or how the beneficiary sells its or any other manufacturer's products. The petitioner does not set the work schedule of the beneficiary and does not conduct performance reviews of the beneficiary.


In the past, the USCIS has stated that H-1B nonimmigrants must be employees, which means that they must be paid using a W-2 (and not a 1099). The Neufeld Memo solidifies this long-standing rule and provides a basis for a denial of an H-1B where an H-1B visa holder is treated as an "Independent Contractor".


The "Third-Party Placement/ "Job-Shop"" Scenario:


The prospective H-1B nonimmigrant petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company's payroll. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner's line of business, which is computer consulting. The beneficiary's progress reviews are completed by the client' company, not the petitioner.


This scenario eliminates personnel or consulting agency placements for the H-1B nonimmigrant visa category. All placement firms that now use the H-1B visas to place workers at third-party companies whereby the H-1B petitioner’s role is basically relegated to payroll will no longer be able to utilize H-1B visas. The only type of H-1B visas that will be allowed by personnel agencies will be for in-house positions. One good thing that comes out of the Neufeld Memo is that many current H-1B visas, being used by some Indian Job Shops, who place workers in third-party positions, will be permissible only if the "control" issues are appropriately met. As a result of the Neufeld Memo, shabby and ill prepared job shops will slowly be eliminated as they will be unable to use the H-1B classification. Ultimately, this will leave more H-1B visas available for the "traditional" employers.


As previously pointed out, H-1B nonimmigrant professional and specialty occupation worker employers will have an extra burden proving the Employer-Employee relationship on initial H-1B petitions.


The Neufeld Memo states that the prospective H-1B nonimmigrant petitioner can demonstrate an employer-employee relationship by providing a combination of the following or similar types of evidence:


• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;


• Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;


• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;


• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized) that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;


• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;


• Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;


• A description of the performance review process; and/or


• Copy of petitioner's organizational chart, demonstrating beneficiary's supervisory chain.

Our office continues to suggest to our prospective H-1B nonimmigrant petitioners that employer’s filing initial H-1B petitions submit some or all of this information as part of their petition. If not, the employer should expect an extensive Request For Evidence ("RFE") document from the government requesting detailed information.


The New Rule For H-1B Extension Petitions.

The new rule for H-1B extension petitions is that a beneficiary must continue to establish that a valid employer-employee relationship exists. The prospective H-1B nonimmigrant petitioner can do so by providing evidence that the petitioner continues to have the right to control the work of the beneficiary, as described above. The prospective H-1B nonimmigrant petitioner may also include a combination of the following or similar evidence to document that it maintained a valid employer-employee relationship with the beneficiary throughout the initial H-1B status approval period:

• Copies of the beneficiary's pay records (leave and earnings statements, and pay stubs, etc.) for the period of the previously approved H-1B status;

• Copies of the beneficiary's payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;

• Copy of Time Sheets during the period of previously approved H-1B status;

• Copy of prior years' work schedules;

• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period, (i.e., copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc.). Note: The materials must clearly substantiate the author and date created;
• Copy of dated performance review(s); and/or

• Copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.


If USCIS determines, while adjudicating the extension petition, that the prospective H-1B nonimmigrant petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied unless there is a compelling reason to approve the new petition (e.g., the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of his own.)


Until the promulgation of the Neufeld Memo, H-1B extensions have been granted almost automatically as long as the prospective H-1B nonimmigrant petitioner stated that the beneficiary would be performing the same work as previously petitioned for. The Neufeld Memo exponentially increased the number of RFE’s and denials in extension cases.

Our office is convinced that these new and harsh rules are a result of the USCIS site visits and numerous violations USCIS has seen as a result of the site visits. The state of the U.S. economy certainly has not helped the situation any either. USCIS will no longer permit employers to flaunt the rules and “business as usual” will no longer be an acceptable mode. We continue to see an uptick in ICE, CIS, and DOL compliance issues. We continue to warn our employer clients about the government scrutiny in many areas where there may be perceive abuse of the U.S. immigration and nationality laws.

Nachman & Associates, P.C.
487 Goffle Road
Ridgewood, NJ 07450
Tel. 201-670-0006
Fax. 201-670-0009
Visit our website at www.visaserve.com