| | The Business Immigration Monthly is Hammond Law Group’s news eZine, directed at international workers and employers seeking the most up-to-date news on U.S. immigration issues, specifically those that impact workers on H, L, E, and O visas and workers seeking permanent residency. News items will be of particular interest to those in the Healthcare, IT and staffing industries.
Featured Article
Who’s the Boss? The Ever Evolving Question of Who is the Actual
Employer of a Foreign National Who is Placed at a Third Party Job Site
by Dwight D. Myfelt, Attorney
February Visa Bulletin
The Department of State has released the February Visa Bulletin here: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4611.html. Unfortunately there is not much movement in any of the categories. The only movement can be found in EB3 All Chargeability, EB3 China, and EB3 Philippines moving ahead to September 22, 2002; EB2 China also moved ahead 21 days to May 22, 2005. All other categories remained unchanged.
Guidance on H-1B's for Third Party Placement
Donald Neufeld, Associate USCIS Director, has issued a 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 memo highlights the test of “right to control” to determine the employer-employee relationship and lists a number of factors to consider when seeing if this test is met. The USCIS is supposed to use a “totality of the circumstances” standard when reviewing the evidence presented.
For full Neufeld Memo see: http://www.uscis.gov/
The USCIS has also released a FAQ about the memo found here: http://www.uscis.gov/
US Consulates in India Now Requiring Form DS-160
As of January 19th, 2010, all nonimmigrant visa (NIV) applicants in India must use the new DS-160 web-based application. The consulates are no longer accepting forms DS-156, 157 or 158. For more information please refer to the consulate’s website:
http://www.usembassy.gov/
CBP Officers Causing Problems for H-1B Workers at Airports
There have been accounts from H-1B workers entering from Newark airport encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases 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. 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 any such instances occurring, please contact your HLG attorney immediately.
http://www.cbp.gov
EB-5 Immigrant Investor Visas on the Rise
The EB-5 Investor Visa has been getting a significant amount of press lately. According to a recent Washington Post article, “the number of foreigners willing to invest $500,000 to $1 million in US business in exchange for a visa roughly tripled in the past fiscal year,” shooting up from 1,443 in fiscal year 2008 to 4,218 in fiscal year 2009. The EB-5 Immigrant Investor visa grants permanent residency to immigrants who can prove that their investment (of at least $500,000 to $1 million) in a US business preserves or creates at least 10 US jobs after two years. Under the program, the investor can either create their own business or invest in government certified “regional centers”, which tripled last year as well from 23 to 74 centers nationally. The EB-5 category has become an alternative way to get a green card for those with a long wait time due to backlogged priority dates. Many in Congress agree that EB-5 visa program provides a way for immigrants to not only benefit the economy, but also provides for the creation of much needed jobs.
For full article see: http://www.washingtonpost.com/
US Senators Urge Utility Company to Keep IT Jobs in US
A recent article in ComputerWorld highlights a trend that we are seeing more and more- the offshoring of US jobs. The most recent company to contemplate the outsourcing of jobs is National Grid, a major Northeast utility. National Grid is looking to offshore as many as 1,200 jobs, including many in IT, to an offshore vendor. Congress has gotten wind of this, and Senators Charles Schumer (D-N.Y.), the current spearhead of comprehensive immigration reform, and Kirsten Gillibrand (D-N.Y.) are working to urge the utility giant to keep the jobs in the US. Gillibrand released a letter she had written to the president of National Grid, stating “Considering the current economic climate, it is very disconcerting to hear that any company would consider outsourcing its jobs overseas. It is even more upsetting to know that a company who made $1.43 billion in profits last year would look for ways to increase profits even further at the expense of its employees and quality of service.” Senator Schumer followed Gillibrand’s letter with a news conference in front of National Grid’s headquarters in Syracuse. National Grid’s representative said that no decision to outsource has officially been made yet, “We are very early in the process of a prudent review of our information systems organization and have made no decisions regarding our workforce.” Any claims to the contrary, she commented, “are premature and speculative at this point.” HLG will keep you posted if further news is released by National Grid on this issue.
For full article see: http://www.computerworld.com/
USCIS Realigns Organizational Structure
On January 11, 2010, USCIS announced the realignment of its organizational structure. Key changes are creation of a Fraud Detection and National Security Directorate, creation of a Customer Service Directorate, and division of the Domestic Operations Directorate into two directorates. In his announcement, Director Mayorkas states, “We at USCIS look forward to working collaboratively with you, the public whom we serve, to deliver better service and to more ably accomplish our mission, which is defining of our nation.”
For Mayorkas’ announcement regarding realignment see: http://www.uscis.gov/
2010 H-1(b) Visa Cap Preparation and Strategy Conference Call - Are You Ready?
In preparation of the 2010 H-1B cap, HLG is hosting a teleconference on Thursday, February 11, 2010 at 2pm EST. The topics to be covered include 2010 projections and the ABC’s of H-1B Cap Cases; Issues Specific to IT companies; and Issues Specific to Health Care companies. This conference is free for clients, $100 for non-client. To register please contact, Hillary Steberl via telephone at 513-287-6860 or has@hammondlawfirm.com and provide the following information: Name: Title: Company: Phone Number: Email
Did You Know?
In this new section, each month HLG will be sharing a basic rules and regulations that both employers who hire nonimmigrant workers and employees who are on nonimmigrant visas should know.
Did you know?
- If you are currently in H1B status and you timely file your extension (i.e. before your current H1B expires) you remain in status, even if your prior H-1B expires, for a period of 240 days or until a decision is made on your case, whichever occurs earlier.
HAPPY NEW YEAR FROM HLG! |
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