Third-Party Worksites

Introduction

An H-1B work visa is appropriate if two primary conditions are met. First, an employer must be able to demonstrate its need for a qualified worker to fill a specialty occupation. Second, a valid employer-employee relationship must exist throughout the duration of the H-1B visa residency.  For a more detailed discussion of the first requirement please see our previous articles.

The petitioner (sponsoring employer) carries the burden of proving that a valid employer-employee relationship will exist for the duration of the beneficiary’s (foreign national’s) residency. Usually, a valid employer-employee relationship will exist if the petitioner retains the right to control the daily tasks, the work production, and is able to hire, fire, and pay the beneficiary.

Demonstrating that a valid employer-employee relationship exists in compliance with the H-1B standard has never been difficult when the beneficiary will work at the petitioner’s job site, i.e. office, factory, or store.

However, when an H-1B beneficiary will be working at multiple job sites a petitioner must demonstrate that a valid employer-employee relationship will exist when the beneficiary is on an assignment at a third-party worksite.

It is more difficult to demonstrate a valid employer-employee relationship exists at third-party worksite because usually, both employers maintain some degree of control over the beneficiary. For example, the petitioner may retain the right to pay, fire, and dictate work production, but the third-party worksite may retain the power to discipline and dictate daily tasks of the beneficiary.

Typically, when the United States Citizenship and Immigration Services (USCIS) was skeptical that the employer-employee relationship prong had been satisfied it would request additional information from the petitioner.

However, under the Trump administration, the USCIS has reviewed and altered the third-party worksites evidentiary requirements. It issued a new policy memorandum that mandated that petitioners submit itineraries and non-speculative evidence that an employer-employee relationship will exist throughout the duration of the beneficiary’s residency if the beneficiary will work at multiple worksites.

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Responding to H-1B Request for Evidence in the Trump Era

An H-1B visa is an employment visa for professional workers in specialty occupations that have at least a bachelor degree or equivalent.  Throughout the H-1B visa’s history, the United States Citizens and Immigration Services (USCIS) has been concerned that employers will abuse the H-1B visa by displacing American workers with foreign Responding to H-1B Request for Evidence in the Trump Era counterparts at lower wages.

In 2009 and 2013, the Obama Administration sought to reform the H-1B visa after a study conducted in 2008 revealed that 21% of H-1B visas were granted to applications that contained fraudulent or technical violations.  In the 2008 study, 42% of H-1B visas granted to computer professionals contained fraudulent or technical violations.

Even after the Obama Administration’s changes abuse and fraud remain a concern of the H-1B application process. In 2016, two lawsuits were filed against Disney, which alleged Disney and its staffing companies colluded to use the H-1B visa to replace American workers with foreign workers at lower wages through a series of layoffs.  The suits were dismissed in federal court after a judge found that the plaintiffs had failed to present enough evidence that would reasonably demonstrate that Disney had engaged in the alleged activity.

When Donald Trump took office he vowed to place American workers and American jobs first and end the exploitation of American labor and capital.  President Trump’s Buy American and Hire American executive order illustrates his administration’s will continue to pursue policies to carry out his campaign promises.

As part of President Trump’s Buy American and Hire American mantra his administration took another look at the H-1B visa in 2017 and altered what the USCIS may consider as evidence when reviewing an H-1B visa application.

This article explores the new evidentiary standard that will be applied, the industries most likely to be affected by the Trump administration’s new standard, and what information must be demonstrated to obtain an H-1B visa under this new standard.

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Employers Impacted By Immigration Changes In Trump’s First Year

The January 30, 2018 State of the Union became another chapter in President Trump’s ongoing campaign for America to serve its own needs and its people first.  Embodying this ideology, President Trump declared that, “we will follow two simple rules: Buy American and Hire American.”

During his first term, those two simple rules have dramatically changed the immigration process into the United States.  Although Congress has yet to pass immigration reform, President Trump has issued several executive orders that have overhauled the United States immigration system. Trump’s first year has made it more difficult for employers to sponsor or hire immigrant workers and following Trump’s State of Union employers should not expect it to become easier to hire immigrant workers during the Trump’s tenure.

Travel Ban

The President has the power to implement a travel ban if the President finds that the entry of any foreign national or class of foreign nationals would be “detrimental to the interests of the United States.”  In his first year, President Trump signed three executive orders that placed restrictions on travel and immigration into the United States by certain foreign nationals from specific countries.

The first two executive orders were enjoined – given no legal effect – by U.S. district and circuit courts.  However, the Supreme Court has never ruled on the legality of either because the President had replaced each order with an updated version.

Trump’s third travel ban was signed on September 24, 2017, and imposes travel restrictions for certain foreign nationals as a result of a worldwide review conducted by Secretary of Homeland Security. The new travel ban is different than the previous two because it is tailored to the specific conditions in each country, rather than being a blanket restriction on all immigration from a specific country. For example, business and travel visas were suspended indefinitely for immigrants from Chad, but all visas, other than student visas, were suspended for immigrants from Iran.

Trump’s third travel ban has been enjoined by district courts in Maryland and Hawaii, but the Supreme Court allowed the third travel ban to go into effect while travel ban is litigated further. Lower courts have expressed concerns that President Trump’s campaign rhetoric suggests that any travel ban, regardless of how the travel ban is phrased, would be implemented specifically to target and limit Muslim immigration. In contrast, the Trump administration has argued that the third travel ban does not target Muslims, but rather, is based on the Secretary of Homeland Security’s worldwide review.

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National Interest Waiver

Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves.  Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.

Fortunately, there are a few exceptions.  Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”

There are evidentiary requirements for demonstrating a foreign national’s area of work will be of national interest, but neither Congress nor UCSIS has defined national interest in an attempt to allow the law to be as flexible as possible.

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H-1B for Nurses

Overview

Contrary to what one may believe, most Registered Nurses (RN) or Licensed Practical Nurses (LPN) are not regarded by the government as a profession that is qualified for an H-1B visa. The primary reason lies in the educational requirement for a normal RN or LPN position – typically only two years, which fall short of the four-year college degree requirement for H-1B purposes. To be considered for an H-1B visa, one requirement is that the petitioner, or the employer, must demonstrate that the position is a “specialty occupation.” (see “Basic Overview of the H-1B Visa Qualifications and Procedures”). Generally, a “specialty occupation” can be proved by requiring at least a bachelor degree in a specific field or that the industry standard requires a specific bachelor degree. Usually, nurse manager or an advanced practice positions may qualify for H-1B visas since most of these positions require a Bachelor of Sciences (B.S.) in nursing or a Master of Science (M.S.) degree. However, it may be difficult for RNs or LPNs to be considered for H-1B visas since these positions generally do not require a bachelor’s or higher degree.

Recent Developments at USCIS

In 2002, legacy Immigration Naturalization Service (INS) issued a memorandum providing guidance on this issue and essentially stated that most RN positions would not qualify for an H-1B visa unless the petitioner can establish that the job offered requires at a minimum a college degree. Then, U.S. Citizenship and Immigration Services (USCIS) issued an interim policy memorandum on July 11, 2014 that superseded the former 2002 INS memorandum. The 2014 memo that was later finalized in yet another memo in 2015 discusses the changing industry for nurses and that employers now increasingly expect nurses to have a college degree; however, the adjudicatory standard that USCIS uses to review H-1B applications for nurses has remained essentially unchanged. Currently, the requirements of H-1B for nursing are as below: 

  • The position is a specialty occupation;
  • The nurse has a degree or equivalent pursuant to H-1B regulations;
  • The nurse has passed the foreign nurses exam (NCLEX-RN); and
  • The nurse has passed the state licensure.When an applicant is required to prove a lawful employment before obtaining the license from the state or local authority, and the license is required to practice the profession, USCIS will approve a one-year H-1B petition for the applicant to work on obtaining the license. However, the request to extend the H-1B visa will be denied if the applicant is ultimately unable to obtain the license. 

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Do’s & Don’ts in H-1B Filing Season

Each year prior to April employers and their prospective employees vying for the much coveted H-1B status, of which currently only 85,000 visas are available every year, work to file their cases with U.S. Citizenship & Immigration Services (USCIS) and hope that they will actually have their H-1B applications approved.  Because so much can be at stake in these filings, potentially resulting in loss of job and business opportunities, not to mention potentially displaced foreign nationals who would not be able to be in or continue to stay in the United States absent other viable immigration options, paying attention to details and making sure that a filing is done correctly may make all the difference.

For a comprehensive overview of the H-1B process, read my article Basic Overview of the H-1B Visa Qualifications and Procedures.

Here are some basic guidelines that should always be observed in H-1B filing season:

  • DO start early in the planning process and DON’T wait until the last minute to begin an H-1B case.  The process of gathering the required information and documents in each case can take a few days to several weeks or longer, depending on the size of the employer and the unique situation of each prospective employee.  Additionally, before an H-1B application can be submitted to USCIS, an employer also needs to file a Labor Condition Application (LCA) with the U.S. Department of Labor, which can take up to 7 working days to certify.  Filing an H-1B application without a certified LCA is counterproductive as USCIS will simply reject and return the entire filing, therefore it is important to allow enough time before April 1st to plan, stay organized and make sure that the LCA is in hand.
  • DO expect that the employer or the H-1B petitioner will remain actively involved throughout the entire process.  DON’T rely on the prospective H-1B employee to do all the legwork.  The H-1B is an employment-based process, and the petitioning employer must be aware of what is involved and have a keen understanding of the process itself.  Having the prospective employee “take care of things” generally would not benefit anybody, including the H-1B employer.
  • DO have a clear understanding of the proposed H-1B position, its duties as well as the wage requirements.  DO make sure that the proposed position is a good match for the prospective employee’s skills and qualifications.  DO check that the H-1B candidate has the necessary documentation to demonstrate that he/she is qualified for the proposed position.  DON’T rush through this process as USCIS may very well come back and challenge the merits of this H-1B filing later.
  • DO have a backup plan.  DON’T put all eggs in one basket, as the expression goes.  If the prospective employee was not fortunate enough to have his/her H-1B application selected for review by USCIS, he or she might need to go back to school, apply for another work visa, or return to his/her home country.  Whatever the option may be, it is important to think through these less desirable but possible scenarios ahead of time.  A good strategy is to prepare for the worst and hope for the best!

For more information about this process schedule an appointment with our office today.

Matter of Simeio Solutions and its Effects on the Relocation of H-1B Workers

H-1B visas are nonimmigrant visas granted to bring a limited number of “specialty workers” to the United States each year.  To qualify as a specialty worker, a beneficiary typically needs a degree and/or specialized training.  The H-1B visa program allows American businesses to fill positions with highly-qualified foreign workers while simultaneously protecting the interests of U.S. workers.

On April 9, 2015, the USCIS Administrative Appeals Office (AAO) issued its precedential decision in Matter of Simeio Solutions.  (26 I&N Dec. 542, 2015.)  This case has significant implications for H-1B workers and employers, as it changes the obligations of H-1B employers if the location of the worksite changes after the petition is filed.           

The Matter of Simeio Solutions

In this case, a would-be H-1B worker requested an H-1B visa at U.S. Embassy office in India, and provided information that contradicted the petition filed on his behalf.  The Embassy returned his petition to California for review, and USCIS began an investigation.  USCIS visited the address that was filed as the place of employment, and found the company had moved to a new location.  USCIS issued a Notice of Intent to Revoke (NOIR) the approved H-1B petition.  The petitioner responded with two new work locations and corresponding Labor Condition Applications (“LCAs”) as the places of employment for the beneficiary.  Both locations were outside of the Metropolitan Statistical Area (MSA) of the original petition, and both areas had higher prevailing wages.  USCIS determined (and the AAO later affirmed in the Simeio opinion) that this constituted a material change in the terms of employment which required a new or amended H-1B petition.

The details of the case are much less significant that the ultimate holding.  Simeio states definitively that a qualifying relocation of the job of an H-1B beneficiary to a new geographical area of employment absolutely triggers the requirement for a new LCA and an amended H-1B petition.  Precisely what constitutes a “new area of employment” is tricky, but crucial, and will be explored in depth.

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Basic Overview of the H-1B Visa Qualifications and Procedures

Background and Basics

The H-1B is a non-immigrant visa that allows United States employers to petition on behalf of a foreign national employee to work in a “specialty occupation” on a temporary basis. While the configuration of the visa program has changed over the years, the current H-1B program has been in effect since the Immigration Act of 1990. Qualifications for specialty occupations will be discussed in more detail, but are generally comprised of highly educated workers like scientists, economists, engineers, and doctors. In fact, almost two-thirds of H-1B visa applicants work in the STEM fields (science, technology, engineering, mathematics). These visas do not include workers who may qualify for an O visa (those with extraordinary ability) or P visa (entertainers and athletes). However, fashion models with “distinguished merit and ability,” as measured by prominence in the field, may qualify for H-1B visas.

The goal of the H-1B visa program is to enhance the U.S. economy by bringing skilled foreign workers to fill employments gaps in fields or geographical areas where American workers are lacking. Program guidelines stipulate that hiring the foreign worker must “not adversely affect the wages and working conditions of similarly employed U.S. workers” This is one of several provisions of the program designed to protect American workers.

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USCIS Interim Policy Memorandum Addressing L-1B Adjudications to Become Effective August 31, 2015

L-1 Visa Background Information

L-1 visas are non-immigrant visas specific to the employees of multinational corporations. These visas provide a means to transfer employees currently working for the company abroad to an affiliated U.S. operation. L-1A visas allow higher-level employees such as executives and managers to transfer to a U.S. company. The L-1B category encompasses other current employees who hold “specialized knowledge” in the field or of the company.

The L-1 visa program began in 1970 to further U.S. business interests by expanding the limited options available to bring workers from the international business community stateside. The requisite “specialized knowledge” was not explicitly defined, however, until the Immigration Act of 1990. Since 1990, USCIS has issued several policy memoranda to clarify the specific criteria required to demonstrate specialized knowledge. Each of these memos sought both to clarify the evidence that a petitioner needs to present, and to reflect more clearly the congressional intent of the L-1 visa program. In creating the L-1 program, Congress sought to “promote the United States as a global business destination” by facilitating international business through the expansion of opportunities for foreign nationals to work for their international company within the United States.

Contrary to the intent of Congress to increase international business, and efforts by USCIS to clarify the L-1B adjudication process, petition denial rates skyrocketed from six percent in FY2006 to thirty-five percent in FY2014. While a confluence of factors likely contributed to this pattern, in November of 2014, President Obama’s vowed that a final memorandum that would clarify L-1B decision-making and help rectify the issue as part of his executive actions on immigration. It has been the hope of stakeholders that new guidance would finally provide predictability to the adjudication process.

USCIS’s Latest L-1B Policy Memo

USCIS posted their Interim Policy Memorandum on L-1B Adjudications Policy on March 24, 2015 (Memo). A period of feedback on the proposed changes was open to stakeholders until May 8, 2015. USCIS is currently taking feedback under advisement, and the Memo, as published or possibly incorporating suggested changes, will go into effect August 31, 2015.

The Memo seeks to clarify the following in respect to L-1B claims: the applicable standard of proof; the elements necessary for approval; the definition of and evidence determining specialized knowledge; factors to be considered in corroborating proof of specialized knowledge; and how qualifying employment (both regular and offsite) can be demonstrated.

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Using the B-1 Visa in Lieu of the H-1B Visa: Pros and Cons

Normal H-1 requirements:

The H-1B visa is issued to those skilled foreign workers who have a bachelor’s degree or higher in the specialty occupation for which they are being issued the visa.[1] US employers sponsor the foreign worker and file a labor condition application (LCA) with the U.S. Department of Labor, and the employer  makes several attestations in the LCA, mainly the following: the H-1B worker is being paid the same wage as U.S. workers who have similar experience and qualifications for that specific employment;  employment of the non-immigrant does not adversely affect working conditions of other workers similarly employed;, and notice of filing the application was provided to workers employed in the occupation at the place where the H-1B worker would be employed.[2]

Problems with H-1 visa:

Practitioners and applicants for the H-1B visa find that the most salient problem with the H-1B visa filing is the annual cap. Currently, the visa cap is set at 65,000, with an exemption for 20,000 nonimmigrants who hold master’s degrees or higher.[3]  The problem is that the number of applicants greatly outstrips the number of available visas, often resulting in the visa cap being filled on the very first days when filings are accepted.[4]

Therefore, potential H-1B applicants may try to explore alternative methods to enter or stay in the US, without having to deal with the visa cap. One possibility is that worker may come to the US under a B-1 visa. However, this approach is somewhat controversial and not yet widely accepted or understood within the different the government agencies.  Consular posts may not know how to properly adjudicate these applications and even if granted, foreign nationals may encounter problems at the port of entry when the Customs and Border Patrol (CBP) officers are not willing to grant them admission.  The United States Citizenship & Immigration Services (USCIS) and its predecessor, the legacy Immigration and Nationality Services (INS), have traditionally been hostile to this visa category and viewed it with much skepticism.  Therefore, employers and foreign nationals wishing to pursue this visa option should understand the requirements and proceed with caution.

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