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Old 01-14-2010, 09:20 AM
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Default CIS issues memo on "employer-employee" relationship and consulting arrangements



The US Citizenship and Immigration Service has issued a long memorandum on what constitutes an "employer-employee" relationship for H-1B purposes. This should be especially interesting to H-1B workers and employers with consulting or contracting arrangements.


US immigration regulations (8 C.F.R. 214.2(h)(4)(ii)) require, among other things, that a H-1B petitioner "Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee"


CIS acknowledges that the lack of guidance defining what constitutes a valid employer-employee relationship has caused problems, especially when employees such as consultants or contractors are placed at 3rd-party sites. In these situations, the petitioner might not be able to show the required control over the employee's work. CIS considers that the "right to control" the employee's work is critical. The memo stresses that the right to control is different to actual control. To analyze the control, CIS looks at:
  • Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
  • 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?
  • Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
  • Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
  • Does the petitioner hire, pay, and have the ability to fire the beneficiary?
  • Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
  • Does the petitioner claim the beneficiary for tax purposes?
  • Does the petitioner provide the beneficiary with any type of employee benefits?
  • Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
  • Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
  • Can the petitioner control the manner and means in which the work product of the beneficiary is accomplished?
The CIS Memo describes various different employment relationships, and states whether they meet the regulatory requirements. Those which CIS considers do not comply with regulations include:
  • Self employment;
  • Independent contractors;
  • "Job shops".
The memo describes, in detail, the evidence that can be submitted to prove an employer-employee relationship, especially where the employee will be working off-site.

The memo also notes that petitions must show compliance with 8 C.F.R. 214.2(h)(2)(i)(B) which states:
Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.

The memo notes that to satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must "submit 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. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments." Submitting a detailed itinerary for the next 3 years will be very difficult for many employers who place employees out on contracts.

This memo has just been published today, and there will undoubtedly be many more rticles published that analyze the provisions.












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  #2 (permalink)  
Old 01-14-2010, 09:48 AM
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Is AILA doing anything about it? Do they need IV member support? How do we make it clear to the USCIS and Govt that targetting H1b and the free will of the employer to hire H1b is PURE SOCIALISM and anti-capitalism. It is a sure way of destroying the capitalistic engine that is keeping the US ahead. Is US becoming a restrictive economy like China? China is moving slowly but surely out of its old ways and becoming more and more open to capitalistic policies and we are finding the US slipping slowly but surely into protectionism and more socialistic principles.
How can you protect jobs here by taking away the job of another person??
The person was hired in the first place due to a lot of economic reasons that only a capitalist would know/understand. Simply by snatching the job away from one person and attempting to give to another WILL NOT HELP.
This reactive response to unemployment will destroy whatever industry is left here. Even research is now being outsourced. Biotech/research triangles are springing up in china and India and elsewhere. Major US universities are now collaborating or setting up independent shops in India and china. Ofcourse Japan and europe is not at all behind. Where is the US left now? CRYING CRYING ABOUT H1B VISAS???? IS IMMIGRATION IS REAL CAUSE OF UNEMPLOYMENT HERE???????
FINALLY ONE THING I HAVE REALIZED "WHAT IS DESTINED TO HAPPEN WILL HAPPEN".
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Old 01-14-2010, 11:34 AM
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i also find it disturbing that USCIS is trying to define its own definition of employer-employee relationship. As long as a company pays a person, that person is employee. They have no right to demand that there needs to be immediate supervisor from same company onsite or that company needs to provide the itinerary for employee.
I know job market is bad, but hunting down H1b's is not going to make it better.
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Old 01-14-2010, 11:57 AM
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http://www.cis.ctc.edu/pub/groups/pp...vEEHandout.pdf


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