Categories
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

MFH thoughts on USCIS Forum Re: Neufeld memo

On Fri, the USCIS held an open forum to discuss the impact of the January Neufeld memo which prohibited “job shops” from participating in the H-1b program, and, specifically, the impact to healthcare staffing companies. Both Sherry Neal and myself attended along with several other attys. that represent physician and therapy staffing companies.  First, I do have to give kudos to the USCIS for even having such a session. Certainly, it would’ve been nice to have such an information gathering session PRIOR to the release of a policy memo that changes 30 plus years of practice but, hey, better late than never.

 Secondly, the motive behind the memo attacking “job shops” was confirmed. The memo was released with the intention of preventing “job shops” from participating in the H-1b program. Follow the bouncing ball: 

  1. Lots of “fraud” in the H-1b program perceived by certain Congressional members (refer to the “fraud” report from the fall of 2009 which by the way is one of the most flawed reports I have ever seen) +
  2. Lots of fraud observed by USCIS officials from site investigations and other initiatives +
  3. The majority of both the “fake fraud” touted by Congressional members and the real fraud observed by USCIS was committed by “job shops” +
  4. Limited to no impact of anti-fraud measures from the enforcement side of USCIS and/or DOL

 =    Eureka moment” We can prevent fraud by simply declaring the class  most responsible for the fraud ineligible to file. It started with the requirement of end client letters, followed by an incredulous interpretation of the itinerary requirement and culminated with the January Neufeld memo. The USCIS is smart, they knew that a memo that simply stated “ No More Job Shops Need Apply” would likely have trouble passing APA muster and even some Congressional members may get a bit perturbed at having their legislative powers usurped but, throw in an interpretation of the employer-employee definition and cite some Supreme Court cases and presto; you have reached the same result. The fact that the USCIS definition of employer-employee is in disagreement with every other federal and state agency and 30 + years of practice from their own agency be damned. They got the result they wanted !  

But, now, we arrive at the reason for the Fri. meeting, “unintended consequences”.  The vast majority of the fraud was being committed by those nasty IT job shops and preventing medical doctors, physical therapists, and occupational therapists from obtaining H-1b visas was not the result the USCIS was trying to achieve. Alas, a solution that allows medical “job shops” to operate without allowing IT “job shops” is being sought and frankly, I left the meeting with a feeling that a solution will be achieved. Whether it is based upon a simple “carve-out” of medical occupations or the production of a new list of incidences of employment;  specifically, those that a medical staffing company may have an easier time meeting eg. License, malpractice insurance, etc or whether the word will trickle down to the officers at the service center, whispered from cubicle to cubicle and at each smoke break, “pssst, we aren’t targeting the medical staffing cos., only those horrible IT shops, wink wink !”

 

All in all, it was a great meeting and I left with the conclusion that a legislative solution is needed. A unique visa for job shops of all types with significant anti-fraud measures i.e. the type that make your knees ache in the middle of the night if you are a job shop owner and are thinking about benching someone without pay. I call on Congressional members to do your jobs, legislate. Don’t dump this problem in the laps of the USCIS.

Categories
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

AILA SPEAKS OUT ON NEUFELD MEMO

The American Immigration Lawyers Association (AILA) sent a letter to USCIS today, requesting that the January 8th “Neufeld memo” on the “employer-employee relationship” be withdrawn. In the letter, AILA pointed to four key problems with the memo:

1. The memo is a new policy that is inconsistent with current regulations: The regulations already define “employer” for H-1b context and indicates control when the employer “may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The Neufeld memo adds additional requirements beyond what the regulations say.

2. The policy imposes significant economic burdens on business, at time when the government should be trying to encourage business growth: Employers will have to spend considerable time and money gathering additional evidence to file an H-1b petition or respond to a request for evidence. The additional paperwork and increased “unpredictability” of adjudications has a chilling effect on employers who want to hire H-1b workers. Also, AILA pointed to several studies of the positive economic of H-1b employment, including one study that found that “U.S. technology companies increase their employment by an average of five U.S. workers for each H-1b worker they hire.”

3. The memo will have serious adverse affects on employers and individuals: AILA pointed to state restrictions on physicians being employed directly by hospitals and to locum tenens and other temporary placement arrangements in the healthcare area (including therapists) where it will be difficult to satisfy the standards of the memo. AILA also pointed to government contracts as not being able to meet the standards. The memo will also negatively affect H-1b workers who file to change employers or extend status, and may have adverse effects on their permanent residence petitions. AILA noted that it is not just the H-1b petitioner and the H-1b worker that are impacted — the end-users are also effected as they may experience a disruption in work for an H-1b worker that is not able to extend status or when additional staffing is needed.

4. The policy is spreading to other nonimmigrant and immigrant petitions: AILA noted that USCIS has been adjudicating L-1 petitions and I-140 petitions based upon this new, heightened standard of employer-employee relationship.

AILA also re-iterated that the new policy is a violation of the Adminstrative Procedures Act, and urged that the memo be withdrawn immediately.
Categories
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

USCIS Meeting for Staffing Companies Re: the Neufeld Memo

Personal Message from Michael Hammond

We have just been advised that the USCIS is holding a meeting this Thursday, February 18th, in Washington DC to allow questions and receive input regarding the recent Neufeld Memo. If the staffing model and the use of H-1b workers represents a large portion of your business, I strongly urge you to attend in person. At the very least, I encourage you to attend via phone. I will be attending in person. If you have any questions, please let me know.

Text of the Notice we Received This Afternoon

To: USCIS National Stakeholders
From: U.S. Citizenship & Immigration Services – Office of Public Engagement
Subject: Collaboration Session – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

February 18, 2010 @ 1:00pm EST

Tomich Center, 111 Massachusetts Ave NW

The USCIS Office of Public Engagement invites you to participate in a collaboration session to discuss the implementation of the memo issued on January 8, 2010 which provides guidance on determining if a valid employeremployee relationship exists. A copy of the memorandum is attached along with this invitation.

We are interested in hearing feedback and input on the impact of this guidance and to understand any concerns that stakeholders may have. There are two ways to attend this meeting:

In person – please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov or (202) 272-1213. Be sure to arrive at least 15 minutes early to allow extra time to be processed through security and bring a photo I.D.

Via telephone – call-in information will be provided when you respond. Please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov. We hope you will be able to join in this important discussion.

Categories
Government Agency Actions - USCIS, ICE, etc. Green Cards Visas - H-1b, L-1, E, O, TN

DOS Proposes Fee Hike

In a Federal Register Notice released today, the Department of State announced a new fee structure for cases to be processed at consulates and embassies abroad.

Presently, DOS processes all Immigrant Visas (family based or employment based) at a fee of $355 per person. The new proposed system will be a 4-tiered fee structure with a lower fee for family based immigrant visas ($330) and a significantly higher fee for employment based immigrant visas ($720). Other rates will apply to self-petitioned cases and humanitarian cases.

In family based cases, the Affidavit of Support review fee is proposed to go from $70 to $88.

The Notice does not include an increase in nonimmigrant visa application fees, which are currently $131 USD.

To read the Notice in its entirety, please visit: http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf

Categories
Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

ENTRIES AT THE NEWARK AIRPORT

During the last week, the headquarters of the Customs and Border Patrol has provided AILA with information about the enforcement activities at the Newark airport. The CBP inspectors at the Newark airport have been assisting in an investigation of certain H-1b nonimmigrants and H-1b companies. Many of the recent cases where individuals were detained involved companies that were apparently under investigation by ICE (Immigration and Customs Enforcement).
However, the Newark Airport has implemented a new policy for other situations as well. The following should be noted:
1. RANDOM CHECKS: The Newark airport is doing random checks for returning H-1b, L-1 and other employment-based visa holders. If there are questions about inadmissibility, the person will be sent to secondary inspection for further interview.
2. LAWFUL PERMANENT RESIDENTS: Lawful Permanent Residents with a criminal conviction after 1998 should expect to be detained. If the airport cannot obtain a copy of the conviction record within 24 hours, the person may be released. The person should be proactive in traveling with a court certified copy of the court disposition – and should consult with an attorney before traveling.
3. CONDITONAL PERMANENT RESIDENTS: Individuals with pending I-751 petitions (applications to remove conditional permanent residence granted to one who married a U.S. citizen) will be sent to secondary inspection for further interview to verify the validity of the petition.
4. EMPLOYER VERIFICATION: Employers may be contacted to verify/substantiate the employment details in the petition of an H-1b, L-1 or other employment-based visa holder entering the Newark airport.
5. EMPLOYER DATA: Employers and employees should expect that CBP may check other sources such as company websites for consistency with the information in the petitions.
Categories
Visas - H-1b, L-1, E, O, TN

Unused FY 2010 H-1B1 Numbers to be Counted in FY 2011 Cap

In a recent USCIS Stakeholders Meeting, AILA asked for clarification on how unused H-1B1s for Singaporean and Chileans are counted back. Under the Chile/Singapore Free Trade Agreement, 6,800 H-1B cases are reserved per cap for specialty occupation cases from Singapore and Chile. The USCIS responded to AILA by stating that unused H-1B1 numbers from a fiscal year will be reallocated for use in the subsequent fiscal year.

For example, the 6,100 unused Chile/Singapore H-1B1s from FY2009 were added back to the 58,200 regular cap numbers available for FY 2010 to get 64,300 regular cap visas available for FY 2010 (this excludes the 20,000 master’s cap exemption).

Thus far, only 129 of the 6,800 H-1B1 cases under the FY 2010 cap have been used. This means that potentially more than 6600 additional H-1B cap cases will be accepted under the FY 2011 cap, which opens in April 1, 2010. Please note, the USCIS did state that although the regular H-1B cap has been closed, they continue to accept reques for H-1B1 visas or change of status cases.

Categories
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

NEUFIELD MEMO BEING CHALLENGED

The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) of which Michael Hammond is a member. They met this week and the hot topic of discussion was the recently released Neufeld memo (See January 13th blog post and the January HLG Business Immigration Monthly for more details on the memo). There is a strong belief that the memo was issued in violation of the Administrative Procedures Act. There is also the belief that the memo violates long-standing precedent and established law. It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter.
The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse specifically dedicated to collecting and posting relevant documents and information on this issue. This will allow all interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. You can contact Mike Hammond at mfh@hammondlawfirm.com for additional information.
Categories
Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

AILA’s Business Litigation Comm. Re: Neufeld memo

 The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) and we met this week and the hot topic of discussion was the recently released Neufeld memo. There is a strong belief that the memo was issued in violation of the Administrative Procedures Act.  There is also the belief that the memo violates long-standing precedent and established law.  It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter. The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse  specifically dedicated to collecting and posting relevant documents and information on this issue.  This will allow all  interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. contact mfh@hammondlawfirm.com for additional info.

Categories
Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

H-1Bs Encountering Problems at Airports

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.

Categories
Visas - H-1b, L-1, E, O, TN

GUIDANCE ON H-1B’S FOR THIRD PARTY PLACEMENT

At the annual AILA immigration conference in June, the USCIS promised that a memo would be forthcoming on the issue of H-1b. Now the USCIS has issued the memo providing guidance on the issue of “employer-employee relationship” for H-1b’s. 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.”
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.