Hammond Law Group, LLC

We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of “rogue” behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.

At the annual AILA immigration conference last June, the USCIS promised that a memo would be forthcoming on the issue of  what constitutes an employer-employee relationship for H-1b purposes. On January 13th, the USCIS issued a memo providing guidance on this issue. This memo is especially important to petitioners who place H-1b workers at third-party sites, such as information technology staffing companies and healthcare staffing companies.

The USCIS has long used the test of “right to control” to determine the employer-employee relationship. This memo specifies some factors that USCIS will look at to determine whether the petitioner has the right to control the H-1b beneficiary:

1. Whether the petitioner supervises the beneficiary (off-site or on-site)
2. How supervision is maintained (i.e. weekly calls, reporting back to main office, etc.)
3. Whether the right to control is on a day-to-day basis
4. Whether the petitioner provides tools or equipment needed to perform the duties
5. Whether petitioner has the authority to hire, fire, and pay
6. Whether the petitioner evaluates work-product of the beneficiary
7. Whether the petitioner provides employee benefits
8. Whether the petitioner claims the beneficiary for tax purposes
9. Whether the beneficiary uses any proprietary information of the petitioner
10. Whether the work-product is directly linked to the petitioner’s line of business.

The USCIS acknowledges that no single factor is determinative; rather, the decision will be made on the “totality of the circumstances.” Adjudicators  are also encouraged to look at the nature of the petitioner’s business and the beneficiary’s type of work to determine the degree of control present.

The memo is particularly instructive on what type of specific relationships would qualify as meeting the right to control test, and what type of initial evidence to submit to show these relationships exist. Lastly, the memo instructs adjudicators who issue RFE’s on this issue to “specifically state what is at issue” instead of issuing generic, boiler-plate RFE’s. Also, the memo says that adjudicators cannot mandate a specific type of evidence unless it is required by the Regulations.

Clients are encouraged to contact their HLG attorney for more information regarding this issue.