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Old 07-30-2010, 09:07 AM
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Default Success Story: Showing a Valid Employer-Employee Relationship: Shusterman

Success Story: Showing a Valid Employer-Employee Relationship

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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Old 07-30-2010, 02:15 PM
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Every lawyer is a businessman. And every businessman has a success story to tell to advertise himself. And you are unknowingly doing viral marketing. Look up on Google what viral marketing it. Has any of these lawyers done viral marketing of IV or greencard backlog action items on their forums and newsletters? So why are you advertising them? You go around town asking lawyers if they did any case successfully Showing a Valid Employer-Employee Relationship. And you will mostly get Yes answer so that they get more business. So why promoting only one lawyer.

Last edited by imh1b; 07-30-2010 at 02:19 PM.
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Old 07-30-2010, 02:36 PM
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Quote:
Originally Posted by imh1b View Post
Every lawyer is a businessman. And every businessman has a success story to tell to advertise himself. And you are unknowingly doing viral marketing. Look up on Google what viral marketing it. Has any of these lawyers done viral marketing of IV or greencard backlog action items on their forums and newsletters? So why are you advertising them? You go around town asking lawyers if they did any case successfully Showing a Valid Employer-Employee Relationship. And you will mostly get Yes answer so that they get more business. So why promoting only one lawyer.
Not sure why some folks make a big deal about some lawyer getting some advertisement. I don't work or favor any specific lawyer. I am posting some information that could be helpful to the community. If you read through that posting, you will see some smart wordings that could shut out USCIS memo.

Consider it for its content rather than who is writing it. For me IV is the primary forum. All other websites just supplement the information. We should welcome information wherever it comes from if we can benefit from it.
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Old 07-30-2010, 04:10 PM
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This memo is under litigation....lets see the outcome and where the memo stands.
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