Hello and welcome to the February 2010 Immigration Newsletter!
This is February, the second month of the year and also one of the busiest months after March and April. Well, as no points for guessing the reason. All the employers are getting ready for the H-1B filing season as USCIS will begin accepting H-1B petitions subject to the Fiscal Year 2011 cap on April 1, 2010. Cases are considered accepted on the date that the USCIS takes possession of the petition; not the date that the petition is postmarked. Although earlier in 2009, H-1B petitions were sluggish, the uptick in H-1B petitions increased dramatically from October to December last year suggesting that there is an improvement in the economy and that demand for H-1B workers is likely to continue into the next H-1B season.
If you are an employer considering petitioning for an H-1B employee in April 2010, Contact VisaPro immediately as it is always suggested to get started early as the H-1B visa cap is predicted to be used up much faster than in FY 2010.
USCIS memo is the talk of the town these days. On January 8, 2010, the United States Citizenship and Immigration Services (USCIS) issued a memorandum intended to clarify the meaning of the “employer-employee” relationship for H-1B visa purposes. While the January 8 memo does not change any of the basic requirements for H-1B classification, the clarifications provided means that USCIS will be taking a closer look at all H-1B petitions, both new employment and extension petitions. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.
The memo was issued in response to ongoing confusion over what constitutes a valid employer-employee relationship in the H-1B context. This guidance will look familiar to any immigration attorney or H-1B employer who has received a request for additional evidence (RFE) in the recent past. The guidance reflects the substance of those RFE’s requiring proof the work is to be performed for the employer and requesting details on any on-site work with a third party.
USCIS, in deciding whether an H-1B employer – employee relationship is valid, focuses on the issue of control. USCIS must be satisfied the H-1B employer has a sufficient level of control over the H-1B employee. To satisfy USCIS, the H-1B employer must be able to establish that it has actual control of (or the right to control) when, where, and how the H-1B worker performs the job.
The following table shows the types of jobs that meet the employer – employee relationship and vice versa:
Thus, if you are an H-1B worker in search of new work, especially in the IT sector, you must scrutinize the relationship with your prospective H-1B employer to make sure the proposed employment relationship is acceptable under USCIS criteria. If you don’t do so, you risk being denied an H-1B visa or change of status. In particular, if your H-1B employer will place you at client worksites to perform your job, you may not qualify for H-1B status.
We have addressed several of the main points of the memo through a “Question and Answer” format in this month’s In Focus article.
Other Developments in Immigration Law:
DOL Secretary Hilda L. Solis Announces Final Rule for H-2A Program
U.S. Secretary of Labor Hilda L. Solis today announced a new rule regarding the H-2A program. The Labor Department published in the Feb. 12 edition of the Federal Register, a final rule governing the labor certification process and enforcement mechanisms for the H-2A temporary agricultural worker program. The final rule is being published to strengthen worker protections for both U.S. and foreign workers and to ensure overall H-2A program integrity. The rule will be effective March 15, 2010.
USCIS to Issue Revised Approval Notices for Certain Forms I-129 and I-539
USCIS is alerting customers of certain Notices of Approval (Forms I-797) issued between Jan. 20 and Jan. 27, 2010, with incorrect or missing information. The form types impacted are Petition for Nonimmigrant Worker (Form I-129) and Application to Extend/Change Nonimmigrant Status (Form I-539). USCIS has started mailing new approval notices with corrected information to affected I-129 petitioners and I-539 applicants. Petitioners and applicants who received incomplete or incorrect approval notices should not attempt to use them.
Immigration Articles and Other Fun Stuff:
Now for the regulars – this month’s Immigration Article entitled The Form I-751 – Petition to Remove Conditions on Permanent Residence is a must read if you are granted Conditional Residency in the U.S. through marriage to a U.S. Citizen. The article gives you a comprehensive guide on removing the conditions on your residency. Also check out our In Focus section for this month entitled Staffing or Third-party Placement Consulting Companies May No Longer Qualify for H-1B Visas where we have addressed several of the main points of the H-1B memo through a “Question and Answer” format.
Every month we introduce a new and interesting question for our opinion poll. Last month’s poll results indicate that 52.94% of the respondents believe that the USCIS will reach the H-1B Cap as soon as the filing period opens in April 2010. We appreciate that people take interest in the opinion question and cast their vote to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.
We congratulate Jhanvi Thakkar for winning last month’s Immigration Quiz. Again, we received a significant number of responses from our readers, who talked about various solutions to support their position, but Jhanvi Thakkar gave the correct answer and won free online consultation to discuss the concerned Immigration issues. So it’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!
See you next month with a lot more noise from the Immigration World!