Uscis Memo Essay

2934 Words Jan 1st, 2014 12 Pages
A Timely Analysis of Legal Developments

Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum?
By Jorge Lopez, Shin-I Lowe and Neil Grindstaff


In This Issue: March 2010
The USCIS recently issued a guidance memo to its adjudication officers, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements.” The Memo clarifies what constitutes a valid employer-employee relationship, in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites.

Donald Neufeld, Associate Director or Service Center
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In what may turn out to be a classic case of throwing the baby out with the bathwater, the Neufeld Memo applies not only to those companies that have abused the H-1B system, but the blanket policy also applies to several highly regarded IT consulting companies and staffing agencies that have no prior record of any H-1B violations.

The Memo’s Guidance
Pursuant to the Neufeld Memo, H-1B petitioners must clearly show that an employeremployee relationship will exist between the petitioner and the beneficiary, and establish that the H-1B petitioner will be responsible for the overall direction of the beneficiary’s work. Moreover, the petitioner must also have the right to control the employee’s work,

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which includes the ability to hire, fire and supervise the beneficiary. Lastly, the H-1B petitioner should be able to establish that it will maintain control throughout the duration of the requested H-1B validity period. The Memo ultimately concludes that although some staffing agency employment scenarios and third-party placements meet the employer-employee relationship requirement, many others do not. In the majority of those situations, the petitioner and

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