Vol. XXXXIV A MONTHLY UPDATE ON IMMIGRATION January 2010In this Issue: Corporate and Business Immigration Law News & Policy Updates
CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATES
USCIS Issues New Guidance on Standards for H-1B Petitions Issued for Contractors and Third-Party Worksites In a January 8, 2010, Memorandum, Donald Neufeld, the Associate Director for Service Center Operations provided some updated guidance (“Neufeld Memo”) on the standards for H-1B petitions filed by independent contractors, self-employed beneficiaries, and beneficiaries working at third-party worksites. Increased Scrutiny on the Validity of Employer-Employee Relationships Announced The Neufeld Memo’s primary focus is the Service Center’s latest initiative in determining whether a valid employer-employee relationship exists. Prior to the Neufeld Memo, an employer was required to demonstrate that an employer-employee relationship existed by way of showing that the employer had the right to control the manner in which the work is performed. The factors traditionally used to demonstrate such a relationship were the employer’s ability to pay, hire, fire, supervise or otherwise control the work of the employee. To Establish the Employer’s Right to Control Under the Neufeld Memo, with each H-1B petition (including all new petitions, transfers and extensions of stay), USCIS must determine whether the employer has demonstrated a sufficient level of control over the employee, thus establishing a valid employer-employee relationship. The Neufeld Memo provides that such relationship may be demonstrated by the Service’s consideration of the following factors (with no one factor being dispositive):
USCIS must consider these factors in the “totality of the circumstances” which should provide petitioners with some flexibility to achieve success by demonstrating some, but perhaps not all, of the foregoing factors. Who will be most affected by the Neufeld Memo? While the employer-employee relationship must be established in all H-1B cases, practically speaking, the right to control and employee-employer relationship issues typically arise with petitions filed by contractor/consulting companies with beneficiaries placed at third-party worksites and, thus, those petitioner employers and its H-1B workers are likely to bear the brunt of the new guidance under the Neufeld Memo. Conclusion As a result of the Neufeld Memo, USCIS requires a new level of probative evidence that will need to be submitted as part of all new, transfer and even extension H-1B petitions filed by employers who intend to place the H-1B beneficiary at a third-party worksite. On account of its “law-altering” pronouncement, the Neufeld Memo has generated a fair amount of controversy among practitioners. Indeed, the American Immigration Lawyers Association recently prepared and submitted a written response to USCIS Chief Counsel seeking rescission of the Neufeld Memo. While the guidance is intended to apply for all H-1B beneficiaries, regardless of where they are employed, the Neufeld Memo is most likely to be more rigorously enforced against employers who file H-1B petitions on behalf of employees placed at a third-party site or off-site. Petitioners who regularly place employees off-site should become familiar with the eleven factors described above and be prepared to answer and document the petitioner’s right to control the intended H-1B beneficiary. TPS Granted For Haitian Nationals in the U.S. as of January 12 In response to the devastation caused by the earthquake in Haiti, DHS Secretary Napolitano announced the designation of Temporary Protected Status (“TPS”) for Haitian nationals who were present in the United States as of January 12. TPS is a temporary designation for qualified nationals of a foreign country who are already in the United States in circumstances where such nationals are unable to safely return to their country of origin due to ongoing armed conflict, an environmental disaster, or other extraordinary or temporary conditions. TPS grants foreign nationals work authorization and protection against deportation for the duration of the protected status. It does not lead to permanent resident status or confer any additional immigration benefit. TPS benefits will be initially granted for a period of eighteen (18) months. The statutory bars to TPS benefits will continue to apply - a Haitian national will not be eligible for TPS if s/he: (i) has been convicted of any felony or two or more misdemeanors committed in the United States; (ii) is a persecutor, terrorist or otherwise subject to one of the bars to asylum; or (iii) is subject to one of several criminal-related grounds of inadmissibility for which a waiver is available. For more specific information relating to eligibility for TPS benefits, see INA § 244(c)(2) and 8 CFR §§ 244.1 - 244.4. USCIS Announces Realignment Of Organizational Structure On January 11, the USCIS announced the realignment of its organizational structure. Key changes include the creation of a Fraud Detection and National Security Directorate, to reflect the Obama Administration’s prioritization of anti-fraud and national security responsibilities. Additionally, USCIS announced the creation of a Customer Service Directorate, to focus significant efforts to ensure that the USCIS is “at the cutting edge of service modeling”. Finally, the USCIS announced the division of the Domestic Operations Directorate into two directorates, Service Center Operations and Field Operations. This change is said to foster greater innovation and achieve greater efficiency in the USCIS’ delivery of immigration services. Only time will tell whether such initiatives will, in fact, accomplish the aforementioned goals. Eleven New Countries Designated As Eligible For The H-2A and H-2B Department of Homeland Security (DHS) Secretary Janet Napolitano this week designated eleven (11) new countries as eligible to participate in the H-2A and H-2B nonimmigrant visa programs, which allow U.S. employers to bring foreign nationals to the United States to fill temporary or seasonal jobs for which U.S. workers are not available. The eleven newly designated countries—Croatia, Ecuador, Ethiopia, Ireland, Lithuania, The Netherlands, Nicaragua, Norway, Serbia, Slovakia and Uruguay—join the twenty-eight (28) countries previously designated as eligible to participate in these programs. The key to the H-2B visa is not only that the employer is seeking to hire foreign nationals on a temporary basis, but that the need of the business is also temporary. In other words, the employer may not seek to fill a full-time, permanent position with an H-2B worker. The H-2B category is most often utilized to fulfill an employer’s temporary needs of seasonal employment, handling peak-load situations or filling a position temporarily left vacant by the absence of a regular employee. This category has proven particularly useful for companies in the hospitality industry to meet seasonal or peak-load demands. On a case-by-case basis, DHS may allow a worker from a country not on the participating country list to be eligible for the H-2A or H-2B program if such participation is in the interest of the United States. ESTA Becomes Mandatory Effective January 20 International travelers who are seeking to travel to the United States under the Visa Waiver Program (“VWP”) are now subject to enhanced security requirements. Indeed, all eligible travelers who wish to travel to the U.S. under the VWP must now apply for preauthorization with the Electronic System for Travel Admission (“ESTA”). Effective January 20, the United States Customs and Border Protection (“CBP”) initiated a 60-day campaign to enforce mandatory compliance with ESTA for all air carriers. ESTA is an electronic travel authorization for which all citizens of Visa Waiver Program (“VWP”) countries must obtain prior to boarding a carrier to travel by air or sea to the United States. Under the mandatory provisions of the ESTA, VWP travelers without an approved ESTA will not be permitted to board U.S.-bound aircraft. This requirement does not, however, affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa. ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans. VWP travelers should log onto the ESTA Web site and complete an online application. Click here to view the ESTA website. https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c33E0C6DC-BF82-C7DB-0B5D-8D9915653908_k7D402183-E521-00E1-EE6A-9F825F2F72A4 The web-based application takes about fifteen (15) minutes and prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form. |
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