Thursday, January 14, 2010

H-1B Strategic Planning Teleconference

The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary’s work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):


H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner’s staff and not to third-party clients’ staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner’s proprietary software/processes.

H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- “Job-Shop” where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary’s work.

Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an “as-needed” basis.
o Beneficiary is working in a “core position”. An example of a “core position” is working on a client’s payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary’s work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary’s progress reviews are completed by the third-party company.

The key piece of evidence in the H-1B petitions is going to be your company’s contracts with your end-clients. If you use standard contracts with your clients, please send them to your MU attorney so that we can review these contracts.

MU will be hosting a free teleconference with all clients on Tuesday January 26 at 3PM ET / 12 Noon PT. On the teleconference we will discuss how the Memo will impact staffing companies.

In addition, we will discuss preparing for the H-1B cap season, and so all clients of MU who use the H-1B visa are encouraged to dial-in. If you would like to participate on the call, please send an email to Mary. Mary will send in the dial-in information to you a few days before the call.

4 comments:

  1. Hi Chris,

    It looks like that the memo will badly effect the healthcare staffing companies unlike big IT Firms. Do you anticipate a litigation and result before April 01 2010?

    How come USCIS does not understand that typically most of the hospitals hire RNs through staffing companies since they are not comfortable with training RNs for IELTS + NCLEX and ensure that they finally reach USA. 95% of the International RNs come to USA through Staffing Companies initially and switch over to hospitals.

    I am sure you know the siutation better than any of us. Your comments will be highly appreciated.

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  2. I don't know if there will be litigation, although I think that there is a decent legal case to be made. I certainly do not think that, even if there is litigation, that anything will be completed by April 1, 2010.

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  3. Hi Cris,
    If in case CIR will not be approved, will the PD slows down and retrogressed again? My PD is 2004, will there be a possibility that it will not be current this year since a healthcare bill will not be approved or will PD 2004 still be current within the fiscal year. Please guide me if in any way I have these doubt again in my mind. Thanks Cris and thanks always for the updates.

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