INTRODUCTION:

This briefing will cover a range of issues and problems that

nonimmigrant employees in the H-1B, L-1, and B-1 categories may

encounter at Ports-of-Entry to the United States.

In previous decades, most business travelers found the process

of clearing U.S. Immigration was quick, easy and non-intrusive. Few

persons working for legitimate businesses encountered serious

problems. Not many were ever closely questioned about the nature or

location of their employment, their qualifications, or sources and

amount of compensation; questions were rarely raised about the

business activities of the employer. It was assumed that these

questions and issues had already been satisfied before USCIS

approved a petition and the U.S. Consul issued the visa.

In recent years, however, that has changed for many

non-immigrants. Now, particular problems are encountered by a

substantial number of arriving passengers from countries in Asia

that provide the majority of H-1B skilled temporary workers.

Similar questions are raised with some managers and

specialized-knowledge employees of multinationals being transferred

into the U.S. in the L-1A and L-1B categories. Arriving B-1

Visitors for Business also face much closer scrutiny than

previously. We will cover some of the specific issues that arise

for these categories of travelers in the sections below.

The basic process of U.S. Immigration inspections has not

essentially changed. Before anyone can be granted admission into

the United States, all international passengers must be screened by

an officer of Customs and Border Protection (CBP). Upon

encountering a nonimmigrant visa holder, the CBP officer may ask

questions and take other steps to determine two essential

requirements. To be admitted, the arriving alien must:

  1. hold a lawful visa; and if already in non-immigrant status,

    that must have be lawfully maintained; and,

  2. have “bona fide non-immigrant intent” consistent with

    their visa status.

Upon being satisfied of those issues, the person will be

admitted in most cases for the duration of status without any

delay. On most occasions the questions will be brief and to the

point, such as “Do you still work for X-Y-Z Corporation in

Chicago, Illinois?”, or “How many H-1B visas have you

held?” If, however, the officer develops reason to doubt the

bona fides of the job offer or that the person has violated status

in the past, the applicant will be sent to “secondary

inspection” for further, more in-depth, questioning.

The pages that follow will go through that initial encounter and

any secondary inspection so that the arriving nonimmigrant knows

what to expect, can provide the proper documents, and is best able

to respond to questions in a fully-informative and honest fashion

that satisfies the requirements of the law, as well as the

particular informal rules that CBP and other agencies have

developed.

NOTE: As the reader will find, the actual

agency rules are, increasingly, different from those written in the

federal statutes and published agency regulations. In addition, the

situation is further complicated by interpretations of the law

drawn by CBP and ICE that differ in some particulars from those

accepted by the other two agencies involved in immigration, the

U.S. State Department and USCIS. Obtaining admission in H-1B, L-1

or B-1 status means that the person must satisfy several sets of

standards. The knowledge of how these standards differ, and how

they overlap, is essential to the ability of foreign workers to

continue employment and their companies to operate in the United

States.

I. OVERVIEW

  • For several years, H-1B multinational managers and specialty

    workers arriving at U.S. ports-of-entry have experienced a rise in

    what many perceive as harassment and intimidation by CBP and ICE

    officers.

  • The numbers of admissions refusals and visa revocations have

    risen sharply in recent years, at the same time that demand for

    these visas has dropped by more than 40 percent. There is a

    correlation.

  • Agency policy has changed dramatically, but without a

    corresponding change in the underlying statute and published

    regulations. Most notably, the January 8, 2010 USCIS policy memo,

    the “Neufeld memo” alarmed many Indian nationals

    working on H-1B and L-1 visas for IT companies. That memo restated

    an informal USCIS policy that petitioning companies must document

    “control” over H-1B workers at all times, and placed

    strict limits on H-1B placements at Third-Party work sites. The

    memo also laid out several categories of applications that will not

    be approved, including so-called “body shops”, staffing

    firms that place H-1B contractors at company sites for work that is

    unrelated to the petitioner's own line of business. This

    restriction, imposed by administrative edict, is similar to an

    outsourcing ban placed on L-1B Specialized Knowledge workers by

    law, the 2005 L-1B Reform Act. Off-site assignments for both

    categories remain legal, under certain limited circumstances. While

    there is no such explicit ban in the law that governs H-1B,

    nonetheless, USCIS, ICE and CBP enforce a de facto ban on

    H-1B outsourcing with varying degrees of strictness, and this

    variation in interpretation causes problems for arriving visa

    holders, and considerable anxiety because of uncertainty about how

    the law will be interpreted in any particular, individual

    case.

  • Fears appear to have been well-founded. Within 72 hours,

    Customs and Border Protection (CBP) officers at Newark Airport

    Port-of-Entry (POE), reportedly citing the memo, detained and

    interrogated a number of lawfully employed IT consultants and

    technical workers arriving on a flight from India. A number of

    persons who were determined to be working off-site had their visas

    cancelled, many were forced to withdraw their applications for

    admission, and some were summarily removed, barred from reentry for

    at least five years. While there have not subsequently been similar

    mass interrogations and removals, and CBP has been retrained in

    implementation of the memo, arriving nonimmigrant visa holders must

    still be prepared to deal with questions and potential

    misunderstandings by CBP officers about the rules governing

    off-site work assignments.

II. STEPS EMPLOYERS MUST NOW TAKE TO BE COMPLIANT WITH

USCIS/ICE/CBP RULES, AND TO ASSURE H-1B READMISSION AT THE

P.O.E.

In times past, the questions raised at the POE with returning

nonimmigrant workers were usually restricted to the issue of

ongoing employment. This was normally addressed by producing a

signed letter from the petitioning company confirming continued

employment of the beneficiary, the job title, a brief job

description, salary, and date started and expected completion date

of employment. More recently, the documentation requirements for

the entry letter increased to include a copy of payroll records or

other confirmation that the employee has, in fact, received the

wage offered on the last petition.

Now, after the Neufeld memo, one must be prepared for a

far wider range of potential CBP/ICE inquiry at the POE. The

following section details the additional issues and documents that

the returning nonimmigrant should carry and be prepared to present

upon Immigration inspection.

Demonstrating  the Employer/ Employee Relationship

after the Neufeld Memo and the Newark Airport

Incident

  • The H-1B employer must now file an amended I-129 petition/LCA

    for all but the shortest term off-site assignments (see,

    Sec. III, below) – and, employers should

    give a copy of amended filings to workers as part of documentation

    to establish compliance.

  • If the worker has worked off-site during the previous 3 years,

    provide that worker with a detailed accounting of all off-site

    assignments and evidence that amended petitions and/or LCAs were

    filed, if required. The itinerary must be consistent with

    the USCIS record and the employee must be familiar with the

    details. The employee must be prepared to present these

    records, and answer questions about them at the POE, if issues are

    raised by CBP about unauthorized off-site employment.

  • CBP may also inquire about the individual's previous

    nonimmigrant employment and immigration histories. The employee

    should be prepared to provide at least a copy of all previous

    approval notices for prior periods of employment or education in

    the U.S. (I-797, I-20s EAD Forms for periods of Practical

    Training), along with documentation such as copies of passports,

    visas and entry stamps for any other periods of presence.

  • H-1B and L-1B workers may have to prove that their work

    is otherwise controlled by the petitioner. Provide

    employee with a copy of amended I-129s, petition support letter and

    any relevant documentation related to the following that were

    provided to USCIS with petition filings or amendments, or which

    might be filed at the time of next visa renewal:

  • petitioner payment of salary and benefits;
  • petitioner provision of training, HR, evaluations, and other

    support services;

  • petitioner maintenance of supervision over employee work;
  • employee work samples (if previously submitted to USCIS).

NOTE: If this paper copy of the record is

exceptionally bulky or difficult to carry, a copy of electronically

scanned copies contained on a disc, USB flashdrive or other

portable memory device may be acceptable. [See, Appendix

I, below, for additional information about CPB policies

regarding border inspection of computers and potential seizure of

laptops and other electronic storage devices and players, and

procedures for their return or destruction.]

EMERGING ISSUE: The Neufeld memo

requirement for employer “control” also bans

self-employed contractors. H-1B, L-1, and other

non-immigrants who have a substantial ownership interest in the

companies that petition for them must be able to show they are not

self-petitioning sole proprietors. These “working

directors” must show that other members of a Board can vote to

control company, including removal of the beneficiary. This is an

issue that must be overcome at the USCIS Examinations stage, and

potentially also with the Consul. It is not the sort of issue that

is routinely re-adjudicated at the border. Nonetheless, if the CBP

is looking for grounds to deny admission to the applicant, it is a

topic that may arise, and those potentially at-risk should be

prepared to address it by producing corporate documents, such as

the company's relevant Articles of Incorporation and/or Board

Minutes, along with other documentation of ongoing employment by

the company and the company's continued operations (including

the parent of affiliate abroad, if L-1A or L-1B).

III. Some Do's and Don'ts for H-1B Workers

H-1B Roving Employees and Temporary Offsite Assignments: Know

What's Legal, and What Is Not

Employers in the IT consulting industry and the Immigration Bar

are seeing federal investigators focus on alleged frauds in the

hiring and assignments of temporary foreign workers in the H-1B

visa category. Particular investigatory interest is being shown

consulting firms that employ so-called “roving

employees.”

There is some concern that this means that hiring consulting

firms that employ H-1B workers for assignments at employer sites is

now illegal or will get the contracting company and the

subcontractor (along with their employees) into trouble. That is

simply not the case, provided that certain common sense legal

standards are adhered to. We will briefly outline these legal

standards for you in a moment.

Unfortunately, the risks of criminal prosecution for violations

of changed USCIS policy and interpretation are very real, and the

new policy need not even be one that was ever published as a formal

change in law or agency regulation for prosecution to result. A

very recent example of this the case of U.S. v Vision

Systems Group, Inc. (“VSG”); see, 11 arrested, indicted in multi-state visa fraud –

US Immigration.

On October 14, the U.S. District Court for Central Iowa accepted

a plea agreement in a case that has been watched nervously by some

in the IT-BPO outsourcing industry. The case is seen as a test for

whether the U.S. government can successfully criminalize certain

practices that have long been used by some staffing firms in the

global Information consulting sector, particularly those who

recruit staff in India. [For additional background on the

VSG case, see Appendix

II]

How could this have been avoided? There are two

answers to that question: things that IT contractors may still do

with H-1B workers, and things they must never do.

WHAT'S ILLEGAL- Let's tackle the easier

part of that: Things an IT Contractor Must Never Do With

H-1B workers:

  • Never start an H-1B worker at a client

    worksite without first filing an amended I-129 petition and LCA for

    that site, unless that assignment is short-term (lasting no more

    than 10 days in a row during any year at any particular site for

    regular employees, five days for itinerate or “roving”

    employees who need not return to a designated primary work

    site).

  • Never “bench” an H-1B worker

    – even if there is no assignment available, and it costs

    money out of pocket, the H-1B worker MUST continue to be

    paid at least the wage specified on the current petition for as

    long as he remains an H-1B employee.

  • Never, EVER falsify tax statements,

    withholding reports, immigration records, or any document or paper

    that is going to be filed with the federal government –

    if it goes to one federal agency, assume it goes to all of them

    – because, today, it can and it does, and it is easily

    accessed from interlinked gov't data bases. The employer must

    keep a complete and up-to-date LCA public inspection file for each

    employee. It should also keep a separate H-1B compliance file with

    complete records of any outside assignments, apart from the LCA

    public inspection file and the I-9 compliance file. The employer

    should be auditing its own records (or hire a competent firm to do

    so), and filing corrected statements if it finds any discrepancies.

    Self-audits and resulting affirmative voluntary disclosure by

    employers of compliance problems will not have the same dire

    consequences as falsification or “flubbing” of

    information requested by auditors and inspectors.

  • Never, EVER lie or make misleading statements at the

    Port-of-Entry. False statements by employees at the

    Port-of-Entry can have extremely serious consequences for the

    employer and the employee. The employee should never “wing

    it” about answers to CBP questions, and should be instead

    thoroughly familiar with potential issues or simply respond,

    “I do not know the answer to that question. That is

    something to ask my employer about. I would like to contact my

    employer now so they can answer these questions for

    you.”

WHAT'S LEGAL – And, Finally, Things

that H-1B Workers Can Safely and Legally Do:

  • H-1B employees can be legally assigned to client sites as

    either short-term placements or as “roving employees”.

    This may be done legally for short-term assignments without filing

    any additional paperwork with USCIS or the Department of Labor. The

    specific USCIS regulation that allows that is as follows:

Short Term Placement—20 C.F.R.

§655.735(c). An H-1B in the U.S. under an LCA

may be sent to a new worksite which is not covered by an LCA in the

occupation but only up to a maximum of 30 days each year and up to

60 days each year if the H-1B spends substantial time at a

permanent worksite, if s/he continues to maintain an office or work

station at the permanent worksite and if her U.S. residence or

place of abode is located in the area of the permanent

worksite. http://www.dol.gov/dol/allcfr/title_20/Part_655/20CFR655.735.htm

1. SHORT-TERM PLACEMENTS: A Question of

Time

Whether filing an amended petition is required by the original

employer is required depends upon the period of time the worker

will be assigned off-site.

The regulations at 20 CFR Part 655.735 impose further conditions

on such short-term assignments, as follows: [Also, see,

Appendix III]

(2) The employer shall not place, assign, lease, or otherwise

contract out any H-1B nonimmigrant(s) to any worksite where there

is a strike or lockout in the course of a labor dispute in the same

occupational classification(s) as that of the H-1B

nonimmigrant(s).

(3) For every day the H-1B nonimmigrant(s) is placed or assigned

outside the area(s) of employment listed on the approved LCA(s) for

such worker(s), the employer shall:

(i) Continue to pay such worker(s) the required wage (based on

the prevailing wage at such worker's(s') permanent

worksite, or the employer's actual wage, whichever is

higher);

(ii) Pay such worker(s) the actual cost of lodging (for both

workdays and non-workdays); and

(iii) Pay such worker(s) the actual cost of travel, meals and

incidental or miscellaneous expenses (for both workdays and

non-workdays).

2. ROVING EMPLOYEE – The regulations define a

type of H-1B employee whose work is “peripatetic”

(roving) in nature, in that the normal duties of the occupation

require frequent travel.

20 CFR §655.17. “Peripatetic” is included under

the definition of “place of employment.”

Peripatetic workers may travel constantly, but may not

spend more than five consecutive days in one place, and no more

than 30 days total in a calendar or fiscal year. For such

peripatetic workers, a new location is not considered a new

“worksite,” and therefore does not require a new LCA.

[See, Appendix IIIB]

Similarly, normal H-1B workers (who return to a fixed

work site) who travel occasionally on a casual short-term basis not

exceeding 10 consecutive days to a new location, 60 days total in a

year, in any location are not considered to have a new worksite

with new LCA requirements.

Id. This type of situation is also covered under the “place

of employment” definition.

Although, in these cases the employer is not required to file an

amended petition or obtain a new certified LCA for each new

location to maintain compliance, the employer is required to pay

travel expenses for each day the H-1B employee is traveling (both

weekdays and weekends).

The short-term placement rules permit an H-1B worker to travel

up to 30 or 60 days per year to another “place of

employment.” However, the employer may not use the short-term

placement rules in any area of employment for which the employer

has a certified LCA for the occupational classification. If there

is an open slot on an approved “basket LCA”, that must be

used.

If the employer has such a certified LCA with an open slot, then

the employer must use that and add a copy of that LCA to the

employee's public access file. If the employer has a certified

LCA for that location and occupation, but it doesn't have any

open slots, then the employer must file a new LCA for that

worker.

The regulations specifically prohibit employers from

continuously rotating H-1B employees to short-term placements in a

manner that would defeat the stated purpose of these rules to give

employers flexibility and enough time to file a new LCA.

Consult the regulations for a detailed description of this

rule.

Also note that the filing of a new LCA will likely require the

filing of an amended H petition due to material change in

employment.

Companies that have had compliance issues, are heavy H-1B and

L-1 users, or routinely assign non-immigrant workers to third-party

sites need to consult with counsel, and may be advised to always

file an amended petition before any H-1B or L-1 placement.

4. LONG-TERM ASSIGNMENTS: A Question of

Control

Any external assignment presupposes that the original H-1B

employer continues to maintain control over the employment of the

H-1B worker while (s)he is assigned at the client site. In general,

the regulatory definition of control over employment for this

purpose is contained in the following definition [8 CRF

Sec. 214(h)(4)(ii)]:

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 within 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

( 3 ) Has an Internal Revenue Service Tax identification

number.

In any filing of an amended petition or second petition, USCIS

will look for evidence that the terms of control over the

employment and activities of the H-1B employee are clearly spelled

out in an agreement between the original employer and the end

client. If a copy of a contract or other binding agreement is not

included with a petition filing, the Service will likely issue a

Request For Evidence (RFE). That notice normally includes

boilerplate language stating “[t]his Service accepts that

you are the employer, not an agent, and that you retain control

over the beneficiary's employment. A copy of the agreement(s)

are needed to establish that the employment of the beneficiary is

not speculative in nature, and that the beneficiary will be

employed in fact. Service regulations specify that aliens admitted

to the United States as nonimmigrant workers must have services to

perform….”

Questions may also arise as to which entity, the petitioner or

its client, controls day-to-day supervision of the work product.

While the client may have significant input into that product, and

the work that went into it, ultimate control over the terms and

conditions of the H-1B employee's work – hours

worked, performance review standards, specification of the job

duties – ultimately rests with the employer, in fact, as

specified in the contract between the H-1B petitioner and its

client. The relevant terms of the contract for services

between the H-1B petitioner and its client should mirror those

specified in any employment contract with the worker.

The January 8, 2010 Neufeld memo lays out an elaborate

list of 38 types of documents in five categories that petitioners

must supply at the time of filing to satisfy the memo's

“control” requirements, and a long list of other

documents that must be filed for renewals to establish continued

compliance and maintenance of lawful nonimmigrant status.

This is not the place for an extended discussion of the

Neufeld memo, the requirements and implications of which

are far reaching. Nonetheless, the employee who will be

reentering the U.S. at a Port-of-Entry should be prepared with a

copy of documents that establish his or her ongoing employment

control by the petitioner. These documents will also help

to establish the non-immigrant worker's maintenance of status

under that interpretation document that has been adopted as

guidance by other agencies, including CBP.

A GREY AREA: TEMPORARY ASSIGNMENT OF

H-1B EMPLOYEES TO CLIENT WORK SITES OF MORE THAN 30/60-DAYS

CUMMULATIVE PERIOD WITHIN THE SAME YEAR

The Neufeld memo's “complete itineraries”

requirement casts the continued viability of the short-term

assignments and roving H-1B practices into doubt in some cases.

Without a complete itinerary, it is problematic that USCIS

will now approve initial petition filings and amended petitions

that don't credibly specify the agenda for all worksites for

the entire duration of the validity period. Furthermore,

the VSG fraud prosecution for setting up an office

in a low-wage location in Iowa, and then assigning H-1B workers to

other work sites in higher-wage cities, highlights the potential

dangers of a strict application of that rule. [See,

Appendix II, “Plea Agreement in H-1B

Criminal Case Raises New Worries About U.S. Crackdown on I.T.

Outsourcing”]

For longer-term assignments, where a complete itinerary

can be provided, the employer may continue to file an amended

petition for the H-1B worker along with a new LCA. These

new filings are now mandatory under the Neufeld memo for

any assignment lasting more than ten consecutive days, or more than

five days for roving H-1Bs.

Amended filings are also required if a normal H-1B worker is to

spend more than 60 days cumulative during the year at a client site

(this applies to normal workers on short-term assignments who

return to a permanent office). A new LCA filing is required for

“roving H-1Bs” without a permanent office who spend more

than five consecutive days at a particular client site or 30 or

more total days as a roving H-1B at a particular work site.

If the petitioning company is filing an amended H-1B petition to

allow the worker to carry out longer-term duties at a client site,

the employer must demonstrate that it maintains full control at all

times over the work of the employee. Demonstration to USCIS of that

factor can be difficult and complicated.

[This raises the question, how will USCIS, Consuls and

CBP deal with an H-1B employee who has in the past been assigned to

client sites for periods that exceed the letter of the

rule? A second, and related question, is how far

back will these agencies look for non-compliance, and how will that

impact the admissibility of the employee?

[See, Sidebar]]

As a general rule, voluntary disclosure of past

compliance errors is preferable to the making of any false

statement. This is a compliance issue that must be dealt by the

company in consultation with expert legal counsel.

Q. How will USCIS, Consuls and CBP deal with an H-1B employee

who has, in the past, been assigned to client sites for periods

that exceed the letter of the rule for short-term assignments and

“roving H-1B”?

A second, and related question, is how far back will agencies

look for noncompliance, and what impact does that have on the

admissibility of the employee?

Unfortunately, the answer to those questions is largely

conditional on the compliance history of the employer —

non-immigrants who work for companies that have been targeted for

serious compliance problems should be expect that they will be

looked at much more closely than those whose employers have no

serious problems, as evidenced by enforcement activity, program

debarment, high rates of visa denials and visa revocations.

Generally, inquiries are limited to the previous 3-year period, but

there is actually no binding rule or statute of limitations on

fraud investigations, particularly in LCA compliance issues

– such as benching, and underpayment — the

7th Circuit has found. See, Alden Management

Services, Inc. v. Chao, 532 F3d 578, (7th Cir.,

06/25/08 No. 07-2838)

A GREY AREA: TEMPORARY SWITCH OF H-1B

EMPLOYMENT TO A THIRD-PARTY CLIENT

In some cases, particularly for assignments lasting more

than 60 days, it may therefore be more practical for the client

company to directly hire that employee.

The H-1B employment may start work with a new petitioning H-1B

employer on the day the I-129 notice of receipt is obtained from

the USCIS Service Center where it was filed. Regardless of whether

or not that new petition is approved, it is completely legal for

the worker who is in lawful H-1B status to start work for a new

petitioning company the day the receipt is issued. That lawful

practice is known as “porting”, allowed under the INA

section and USCIS interpretation of regulation, below:

(11) H-1B Portability Provisions of INA §

214(n), AC21§ 105.

INA § 214(n), provides that a nonimmigrant who

was previously issued an H-1B visa or provided H-1B nonimmigrant

status may begin working for a new H-1B employer as soon as that

new employer files a nonfrivolous H-1B petition on the

nonimmigrant's behalf, if:

  • The nonimmigrant was lawfully admitted to the United

    States;

  • The nonfrivolous petition for new employment was filed

    before the end of their period of authorized stay;

    and

  • The nonimmigrant has not been employed without

    authorization since his or her lawful admission to the United

    States, and before the filing of the nonfrivolous petition. In

    order to port, an alien must meet all the requirements of INA

    § 214(n), including the requirement that the new petition must

    be filed while the alien is in a “period of stay authorized by

    the Attorney General.” Cite as: USCIS Memo

    on AC21/ACWIA — Guidance for I-140 and I-129 H-1B

    Petitions, and Form I-485 Applications (June 7, 2008), http://thevisabulletin.com/2008/ac21-acwia-memo-from-uscis-neufeld/

In the past, this approach of transferring employment directly

to the end-user client was more likely to succeed without USCIS

challenge (and attendant delays, and the real possibility of visa

denial). It is still legal for an end-user client to file a new

H-1B petition for the worker, and directly employ that worker.

However, this may raise issues related to the control over the

employee if payment of salary is provided out of funds in the

existing contractual or other provider-client relationship with the

worker's current H-1B employer. USCIS may look at the terms of

continuing relationship that indicates co-employment, and is likely

to rule that the new petitioner does not have requisite

“control” over the H-1B worker, and may deny the

petition. Difficulty may also be encountered later, at the end of

the period of an assignment with the client, at which time the

original employer would be required to again petition for the

worker, if the beneficiary is to continue H-1B employment. An H-1B

employee who returns to the original employer at the completion of

an assignment at a client site may raise red flags that the

original petitioner is operating a “job shop”, a practice

that has been increasingly discouraged under the Neufeld

memo.

As with all matters involving compliance with complex regulatory

requirements, the employer should work closely with competent

immigration attorney before making any application for benefits

under the Immigration & Nationality Act.

The company that refers its own H-1B worker for subsequent

assignment at the work site of a client firm will be treated under

the law as a referring agency, and maintains a duty that the worker

maintains lawful immigration status.

Accurate and complete records showing maintenance of legal

status must be kept. That entails Due Diligence steps such as

keeping and maintaining legal contracts and accurate records

covering the company's customer relationship with the client,

as well as the employer-employee relationship. These records should

include the maintenance of an up-to-date itinerary and

documentation of the employee's actual place of employment, the

work performed, the dates (and hours) worked at any particular

site, the source and amount of all payments made to the employee,

and documentation or a descriptive record of the ongoing means by

which the employing firm maintains control over the work of the

H-1B employee. In addition, if these documents are to be

filed with USCIS as part of a possible renewal or other filing, a

copy of that same record should also be provided to the employee

prior to any international travel, even if the worker is returning

on the same visa.

Employees benefit from the H-1B visa program and as such must do

their utmost to safeguard and uphold the requirements with the

sponsoring company.  If you are interested in obtaining more

specific information on the H-1B/ LCA requirements' please feel

free to contact the author.

RELATED ISSUES: BAN ON SELF-EMPLOYMENT IN H-1B, L-1, AND O-1

CATEGORIES

Immigration practitioners have seen the spread of the Neufeld

“control” doctrine to other nonimmigrant classes and to

the I-140 context. About four years ago, we first saw AAO decisions

that in effect overruled the precedent decision, Matter of

Aphrodite, 17 I&N Dec. 530 (BIA 1980) (and 30 years of

other precedent decisions), in an L-1 context where the Director

owned both the petitioning company and its foreign parent or

affiliate.

Of course, these USCIS decisions defy the accepted definition of

affiliated, ie. two companies with a common owner. In recent years,

there have instances where the “control” doctrine has

been applied to deny petitions or visas to owner-directors of firms

where corporate papers do not make it clear that other partners or

Board members have the right to control the petitioner, and by

implication the company.

This interpretation has now spread from L-1 cases to H-1B, as

well as to some scattered O-1 petitions and First-Preference I-140

petitions.

With Neufeld memo, USCIS now demands evidence to prove

in all instances the percentage of ownership and other elements of

control in H-1B cases.

Furthermore, there is a threat for staffing firms that

use the one-person 'corp-to-corp' independent contractors

(“C2C” staffing model). Persons who have a long

history of self-employment as independent consultants, or who are

senior experts in their fields, need to be aware that the bona

fides of a claimed employment relationship may be challenged if

where there does not appear to be adequate evidence that the

petitioning company is actually employing the beneficiary.

Such a beneficiary may be questioned about

“accommodations” made by the petitioning firm, and the

applicant must be clear in indicating that he or she will, in fact,

be working under the control of the petitioning firm as an

employee, rather than with complete independence.

Self-employed consultants may still enter the U.S. on a

B-1 Visitors visa, or on a Visa Waiver, for legitimate short-term

business purposes such as consultations with clients.

However, they should be aware that any representations they made to

a Consul or at the border about self-employment may become an issue

later if that person is hired by a U.S. entity and is sponsored for

an H-1B, L-1 or O-1 visa. The burden is on the applicant to

overcome the bar on self-employment in those categories.

RELATED ISSUES: Elevated Standards for L-1B

“Specialized Knowledge”

In the case of L-1B “specialized knowledge” visas,

USCIS has taken a similar approach to implementing new policy

without publishing regulations. A number of recent AAO decisions

bearing on L-1B issues appear to contradict statute and previous

interpretation rendered by USCIS headquarters' policy memos. As

with H-1B, the agency is again attempting to implement changes in

policy without promulgating formal regulations. In this case, the

policy is to deny L-1B petitions for most employees using informal

interpretation to reduce the potential pool of applicants. The

result of this is discourage all applicants for L-1B save an elite

few who can be shown to have high-level knowledge of proprietary

company-owned technologies, processes, or other closely-held

company information.

A recent Administrative Appeals Office (AAO) decision

contradicts the 1990 Immigration Reform and Control Act and

disavows guidance of the former INS Associate Commissioner, the

“Puleo Memo”, that had been in place as controlling

agency directive for some 15 years.

In effect, USCIS has abandoned post-1990 Act interpretations and

returned to the restrictive standards that it applied with the

original 1970 statute, which entails a much more stringent

definition of “specialized knowledge” and requirements

that the beneficiary hold a substantially higher level of

proprietary knowledge than I.R.C.A. mandates.

The issue of L-1B “specialized knowledge” increasingly

presents a problem in adjudications, at consular interviews, and

can even come up upon questioning at the Port-of-Entry. The

arriving L-1B visa holder may be questioned about his position

within the company and his background, with a particular focus upon

confirming that he or she, in fact, possesses an unusually high

degree of specialized knowledge about proprietary or closely-held

company technologies, processes or other specialized business

information, and is one of the few within the company with such

knowledge.

To continue reading this article please click on the

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Footnotes

1. See, http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

2. For a more in-depth discussion on the subject of

placement of H-1B workers at client sites, please see, https://secureservercdn.net/72.167.241.46/fg5.a21.myftpupload.com/publications/Is_IT_Consulting_Now_Illegal_for_H1B_Visas.pdf

3. For a discussion of the practical issues and

related Q&A, see, Rami Fakhoury on IT Immigration – The

Neufeld Memothe legal implications

of the Neufeld memo, see, The Neufeld H-1B Memo:

Legally Enforceable Policy Directive or Grounds for a

Lawsuit…

4. See, Matter of GSTechnical Services, Inc

(AAO, July 22, 2008) (unpublished), reproduced on AILA InfoNet at

Dec. No. 08081964 (posted Aug. 19, 2008)

5. Memo by James A. Puleo, Acting INS Exec. Assoc.

Comm'r, “Interpretation of Special Knowledge” (Mar.

9, 1994).

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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