gc28262
07-30 07:07 AM
Success Story: Showing a Valid Employer-Employee Relationship (http://shusterman.com/newsletterusimmigrationaugust2010.html#5)
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
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srikondoji
07-26 02:47 PM
pappu,
Just made another contribution of $100. AS i said to you in the past, that i will be making contributions every now and then instead of recurring.
Transaction ID: 2FX50463NH320233G Placed on Jul. 26, 2007
Just made another contribution of $100. AS i said to you in the past, that i will be making contributions every now and then instead of recurring.
Transaction ID: 2FX50463NH320233G Placed on Jul. 26, 2007
Houstonguy
08-11 09:02 AM
EB2-I/PD May 15, 2006/I-140 APPROVED 08/2006/I-485 FILED JULY 2/2007.
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dilvahabilyeha
08-09 01:20 PM
It is your passport number
no friend it cannot be
no friend it cannot be
more...
Positive
04-30 09:10 AM
For any reasonable immigration reform to pass, politicians need an urgency to act. That urgency comes only from an imminent threat to their sitting offices - beyond party lines.
People who are stuck in the immigration process should do a better job in uniting and in working with registered voters so that the issue of immigration reform is a concern for any incumbent elected official.
No one approach is perfect but undocumented workers do a better job in connecting with their community and letting their voices heard than so called "skilled immigrant" community. Our silence makes CIR amnesty and will be dead on arrival.
People who are stuck in the immigration process should do a better job in uniting and in working with registered voters so that the issue of immigration reform is a concern for any incumbent elected official.
No one approach is perfect but undocumented workers do a better job in connecting with their community and letting their voices heard than so called "skilled immigrant" community. Our silence makes CIR amnesty and will be dead on arrival.
uma001
11-16 04:57 PM
Hi,
My educational background is Bachelor of Engginerring in Computer science.
I came to United states in December 2006. when i came i was having six years of experience.
My employer applied for my Labor in 2nd week of August 2008. After 2 weeks my attorney asked for a self affidavit having details about my work experience from 2001 till 2006 and also he gave me a format.
I prepared one affidavit for one employer ( totaly five affidavit for five employers between 2001 to 2006 ). I was team member in First and second Employer, i was a Team Lead in third employer, I was a Project Leader in Fourth and Fifth employer.
When i prepared the self affidavit i made a mistake, I gave the correct dates, correct designation ( Which is in my offer and reliving letter ) but i kept same responsiblities for all employers.
I didnot get any issues in my Labor. My Labor got approved in March 2009. Now my employer filed I - 140 in the end of september. Two days back he said that there is a RFE regarding my I - 140 case. THe RFE contains the Below Details.
"SINCE THE EVIDENCE INDICATES THAT THE BENEFICIARY DOES NOT HOLD AN ADVANCED DEGREE, IT MUST ESTABLISH THAT HIS POST-BACCALAUREATE EXPERIENCE WAS PROGRESSIVE. HOWEVER, HIS SWORN AFFIDAVITS INDICATES THAT WHILE HIS JOB TITLES CHANGED, HIS DUTIES IN 2006 WERE STILL THE SAME AS THEY WERE IN 2001 FOR EMPLOYER 2. PLEASE EXPLAIN HOW HIS EXPERIENCE WAS PROGRESSIVE"
I explained the suitation to my employer but he is saying there is only 50:50 chance for I-140 to get approved.
What will happen now ?
What type of document i should provide to USCIS for this query?
Will my I - 140 get approved ?
Thanks & Regards,
Raj..
Is your green card filed under EB2 or EB3?
My educational background is Bachelor of Engginerring in Computer science.
I came to United states in December 2006. when i came i was having six years of experience.
My employer applied for my Labor in 2nd week of August 2008. After 2 weeks my attorney asked for a self affidavit having details about my work experience from 2001 till 2006 and also he gave me a format.
I prepared one affidavit for one employer ( totaly five affidavit for five employers between 2001 to 2006 ). I was team member in First and second Employer, i was a Team Lead in third employer, I was a Project Leader in Fourth and Fifth employer.
When i prepared the self affidavit i made a mistake, I gave the correct dates, correct designation ( Which is in my offer and reliving letter ) but i kept same responsiblities for all employers.
I didnot get any issues in my Labor. My Labor got approved in March 2009. Now my employer filed I - 140 in the end of september. Two days back he said that there is a RFE regarding my I - 140 case. THe RFE contains the Below Details.
"SINCE THE EVIDENCE INDICATES THAT THE BENEFICIARY DOES NOT HOLD AN ADVANCED DEGREE, IT MUST ESTABLISH THAT HIS POST-BACCALAUREATE EXPERIENCE WAS PROGRESSIVE. HOWEVER, HIS SWORN AFFIDAVITS INDICATES THAT WHILE HIS JOB TITLES CHANGED, HIS DUTIES IN 2006 WERE STILL THE SAME AS THEY WERE IN 2001 FOR EMPLOYER 2. PLEASE EXPLAIN HOW HIS EXPERIENCE WAS PROGRESSIVE"
I explained the suitation to my employer but he is saying there is only 50:50 chance for I-140 to get approved.
What will happen now ?
What type of document i should provide to USCIS for this query?
Will my I - 140 get approved ?
Thanks & Regards,
Raj..
Is your green card filed under EB2 or EB3?
more...
Joey Foley
November 21st, 2005, 07:38 PM
This right here is one area I REALLY need to improve in.
I get home from a show (or whatever I've shot), and can't pick my photos for my editor.
I am ALWAYS so afraid somebody else is going to see and/or like something in a shot that I might not be seeing. I usually end up sending in too many photos.
I'm probably the most undecisive person in the world:o
I get home from a show (or whatever I've shot), and can't pick my photos for my editor.
I am ALWAYS so afraid somebody else is going to see and/or like something in a shot that I might not be seeing. I usually end up sending in too many photos.
I'm probably the most undecisive person in the world:o
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ajm
05-04 08:18 PM
My thoughts exactly! Here is a thread I opened on the subject a couple of weeks ago:
http://immigrationvoice.org/forum/showthread.php?t=600
The idea makes such good economic sense (the government would be price discriminating to increase its revenue) that if USCIS were a private entity they would have implemented something like this a long time ago. But unfortunately it is not and we have to suffer under a "one size fits all" system.
http://immigrationvoice.org/forum/showthread.php?t=600
The idea makes such good economic sense (the government would be price discriminating to increase its revenue) that if USCIS were a private entity they would have implemented something like this a long time ago. But unfortunately it is not and we have to suffer under a "one size fits all" system.
more...
sweet_jungle
10-13 02:28 AM
I have 2 approved I-140s from same company with which I am currently working. One PD is end 2004 and another is end 2005.
My I-485 was filed last July with PD end 2004 (I-140 was approved way back in 2006).
Recently, an ombudsman inquiry revealed my PD to be end 2005 and not end 2004. The 140 with PD end 2005 was never used to file 485.
Anybody with similar experience?
How do I get this corrected?
My category is EB2 India.
My I-485 was filed last July with PD end 2004 (I-140 was approved way back in 2006).
Recently, an ombudsman inquiry revealed my PD to be end 2005 and not end 2004. The 140 with PD end 2005 was never used to file 485.
Anybody with similar experience?
How do I get this corrected?
My category is EB2 India.
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webm
05-29 09:30 AM
When our original APs arrived last year in October they had a expiration date of September 28, 2008. But then we traveled to India and came back on AP. Now stamped AP says
Paroled until 02 Jan 2009
My question is which expiration date should use for renewal purposes and apply the 120 day rule.
Please let me know.
You should still consider the one which is on the AP document...
Paroled until 02 Jan 2009
My question is which expiration date should use for renewal purposes and apply the 120 day rule.
Please let me know.
You should still consider the one which is on the AP document...
more...
geesee_99
12-14 03:52 PM
Thanks RANKSXY..You Made my DAY.
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a_to_z_gc
09-12 03:17 PM
Does anyone know what time it may take for FP notices to arrive for guys whose cases were Xfered to CSC?
i got mine in 1 week after the ckecks were cashed and RN mailed.
i got mine in 1 week after the ckecks were cashed and RN mailed.
more...
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vinabath
07-02 03:18 PM
USCIS taught me a lesson about life.
Never go by rules. Find shortcuts.
Never go by rules. Find shortcuts.
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meridiani.planum
03-12 02:43 PM
One says, I can only remove my Future employer "X", who has filed for my GC, and carry my Priority Date , AFTER I get new PERM and new I140 from the new company.
Other one says, don't worry just move to new Employer and I don't need to refile PERM and I140.
Both lawyers are mentioned over 10 times on this web-site and both are VERY reputed.
I have NEVER worked for employer X, It was a future position and I may still join them.
I have approved 140 and 485 is pending for about 9 months.
EAD is approved and so is AP.
Please help guys!
you dont need to refile PERM and I-140. Since your I-140 was approved and 485 is pending for 9 months you can simply invoke AC-21 and move to another employer.
See questions 2 & 3 here:
http://www.murthy.com/news/UDac21qa.html#3
Did you ask the attorney why they think you need a new filing when you qualify for AC-21 on your existing filing? this might simply be a misunderstanding...
Other one says, don't worry just move to new Employer and I don't need to refile PERM and I140.
Both lawyers are mentioned over 10 times on this web-site and both are VERY reputed.
I have NEVER worked for employer X, It was a future position and I may still join them.
I have approved 140 and 485 is pending for about 9 months.
EAD is approved and so is AP.
Please help guys!
you dont need to refile PERM and I-140. Since your I-140 was approved and 485 is pending for 9 months you can simply invoke AC-21 and move to another employer.
See questions 2 & 3 here:
http://www.murthy.com/news/UDac21qa.html#3
Did you ask the attorney why they think you need a new filing when you qualify for AC-21 on your existing filing? this might simply be a misunderstanding...
more...
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bharol
10-09 08:38 PM
Visitor visa/Business visa for Germany .I have plan business trip to Germany but to get visa, German consulate web site saying they will need visa stamp in passport. My visa stamp in passport is expired and I had use AP for my last entry.
Does any have done European visa with above condition .Please share your thoughts?
Thanks
All you need is proof that you shall get entry back in USA.
I got my German visa through www.visanetwork.com
They take some fee but would get Visa for you. They make sure all your papers are OK and would tell you what to do.
Does any have done European visa with above condition .Please share your thoughts?
Thanks
All you need is proof that you shall get entry back in USA.
I got my German visa through www.visanetwork.com
They take some fee but would get Visa for you. They make sure all your papers are OK and would tell you what to do.
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royjonny
06-19 01:16 PM
Well the lawyer representing the new company believes that without a copy of 140
1. that, they cannot do a H1B transfer.
2. that, I cannot do EAD extension when it expires in October 2008.
1. that, they cannot do a H1B transfer.
2. that, I cannot do EAD extension when it expires in October 2008.
more...
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rskanth
08-18 12:25 PM
It takes average 3 - 6 months for I-140 to get approved(I got it in 40 days), but like lot of other people i am stuck with retrogression :(
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va_dude
03-07 01:21 PM
1. yes, if u use ac21, you can get ur h1 transferred too or opt to use your ead.
2. when u start new employment u fill out an I-9 form and will provide your ead at that time. It basically means you are using your ead for employment, which will automatically invalidate your h1b visa. so i don't think you can do the transfer at a later time.
3. no idea
4. no idea
2. when u start new employment u fill out an I-9 form and will provide your ead at that time. It basically means you are using your ead for employment, which will automatically invalidate your h1b visa. so i don't think you can do the transfer at a later time.
3. no idea
4. no idea
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drirshad
11-26 08:10 PM
My H1 status is pending does means processing or it will change to processing when they really start to look at it.
tikka
06-07 04:28 PM
please Contribute.
Iv Needs Funds
Iv Needs Funds
gcseeker2002
11-05 02:50 PM
I called UScis Customer support and they said that as of today they are approving EADs with notice date July 2nd, so I should wait another few weeks for my EAD, so EAD will take 5 months or more for me :(
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