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.