H1B Visa Lawyer Blog

In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-1B validity period. The Petitioner must also file an LCA specific to EACH location where the beneficiary will be working.

“United States employer,” is defined at C.F.R. 214.2(h)(4)(ii) as follows:
United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work in the United States;
(2) 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; and
(3) Has an Internal Revenue Service Tax identification number.

In considering whether or not there is a valid “employer-employee relationship” for purposes of H-1B petition adjudication, USCIS must determine if the employer has a sufficient level of control over the employee. Level of control meaning right to control, which is different from actual control. An employer may have the right to control the beneficiary’s job related duties and yet not exercise actual control over each function performed by that beneficiary. The employer-employee relationship hinges on the RIGHT to control the beneficiary.

Evidence which helps to establish the employer-employee relationship between Petitioner and Beneficiary:

INITIAL PETITION
• A complete itinerary of services or engagements that specifies the dates of each service or engagement, the name and addresses of the actual employer, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
• Copy of signed employment agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
• Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
• Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are place at the third party worksite, the petitioner will continue to have the right to control its employees;
• Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary, or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
• Copy of position description or any other documentation that describes the skills required to perform the job offered, the scours of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employees benefits, and the tax treatment of the beneficiary in relation to the petitioner;
• Description of the performance review process; and or
• Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain

EXTENSION PETITIONS
• Copies of the beneficiary’s pay records (leave and earnings statements, and pay stubs, etc) for the period of the previously approved H-1B status;
• Copies of the beneficiary’s payroll summaries and/or Form W-2s, evidencing wages paid to the beneficiary during the period of previously approved H-1B status;
• Copy of time sheets during the period of previously approved H-1B status;
• Copy of prior years’ work schedules;
• Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period ( copies of: business plans, reports, presentations, evaluations, recommendations, critical reviews, promotional materials, designs, blueprints, newspaper articles, web-site text, news copy, photographs of prototypes, etc) NOTE: the materials must clearly substantiate the author and date created;
• copy of dated performance review(s); and/or
• copy of any employment history records, including but not limited to, documentation showing date of hire, dates of job changes, (e.g. , the petitioner is able to demonstrate that it did not meet all the terms and conditions through no fault of its own). Such a limited exception will be made solely on a case-by-case basis.

Request for Evidence (RFE)
If Requests for Evidence (RFE) are made, such RFEs, must specifically state (1) what is at issue (e.g., the petitioner has failed to establish through evidence that a valid employer-employee relationship exists) and (2) be tailored to request specific types of evidence from the petitioner that go directly to what USCIS deems as deficient. The RFE should neither require that a specific type of evidence be provided, unless provided for by regulations (e.g., an itinerary of service dates and locations), nor should it request information that has already been provided in the petition. Officers should state what element the petitioner has failed to establish and provide examples of documentation that could be provided to establish H-1B eligibility.

WHAT IS ULTIMATELY REQUIRED?
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.

Source: AILA InfoNet Doc. No. 10011363 (Posted 1/13/2010)

If you have any questions relating to the information summarized above, please do not hesitate to contact our office to schedule a consultation.

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Audits may occur due to former employee complaints, randomly or on a profile basis. For a random audit, the DOL simply selects an employer to audit. However, a profile audit occurs when the DOL discovers a significant variation of offenses in a particular industry/area and the employer is part of the same industry/area, or the DOL has a profile for violators and the employer meets the profile. Evidently, an employer should expect an audit at some point because it is the DOL’s intent to eventually audit everyone who files LCAs.

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (ex. Employment offer/agreement);
• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale);
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from http://www.flcdatacenter.com);
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
• If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing this information should be within the file

H-1B petitions filed on behalf of employees are generally filed for a specific job that has specific job duties. When there is a material change in the terms of an H-1B beneficiary’s employment, the petitioning employer is legally required to file a new H-1B petition or amend the original petition.

What is a material change?

A material change is a change to the H-1B beneficiary’s job that substantially changes the terms and conditions of the H-1B employee’s job. The following are examples of material changes to a job for H-1B purposes:

1. A change in the employment location;
2. A change in the job duties (i.e., when the employee’s job duties change from one specialty occupation to another);
3. A change in the hours of employment (i.e., the employee was originally hired on a full time basis but now is working on a part-time basis); and
4. A change of employer (i.e., a merger or acquisition where the new employer holds a different Federal Identification Number).

When should an H-1B Amendment be filed?

Although there is no specific time to file for a new or amended petition, it is recommended that the amendment be completed before the material change in the job occurs.

What should employers do when they terminate H-1B employees?

Employers have many obligations when they terminate H1-B employees. An employer must always notify the USCIS of a material change. Therefore, the employer must inform the USCIS in writing that the H-1B employee does not work for it with a letter explaining the change. This way the USCIS has a chance to revoke the petition. A notification to the USCIS is crucial in ending the H-1B employers’ obligations such as paying the employee their wages. A bona fide termination occurs when the H-1B employer tells the USCIS of the termination, the H-1B petition has been cancelled, and that the employer provides the employee payment for return back to his or her home country. The USCIS states that they should be immediately notified of an H-1B employee’s termination so that they can make the necessary adjustments and changes to the employees H-1B status. In order for it to be considered a bona fide termination there must be notification of this termination in the manner stated above. The bona fide termination actually occurs on the date the employer informs the USCIS not the date the USCIS revokes the employees H-1B status.