03.16.10

H-1B Employer

Posted in H-1b, Policy, visa at 5:30 pm by Lalita Haran

Specialty Occupation foreign national worker i.e. H-1b visa holders to whom we credit boosting the American economy would soon become a rarity. Soon after the H-1b quota was lowered, the government targetted the IT (information technology) industry with special focus on computer consultancy businesses alleging visa abuse. H1 petitions for these jobs are closely reviewed so also the foreign Nationals hired who reenter with H1b visa for IT consultancy jobs face stringent scrutiny. Reports of RFEs, petition denials for lack of desired documentation and visa refusal at the port of entry to let the unwary foreign national into the country are becoming frequent.

A Memo issued by the USCIS beginning this year has been the underlying cause. The agency Memo requires that h1b petitions show presence of employer and employee relationship and details several factors indicating such relationship. In addition to the traditionally accepted standards such as abilities to pay, hire and fire, it includes exercise of control and suprvision by the employer over the job performed as the necessary indicia of employer and employee relationship.

Factors indicating presence of employer and employee relationships are well established in the subsatntive law and same policies have been followed by USCIS in adjudicating visa petitions. The government memo attempts to borrow these same concepts is a compilation of its poilicies followed so far. However, there has been wide opposition to the memo which is called as untra vires because its issuance did not follow the requisite government procedure detailed in the Administrative Procedure Act. However, even if unltravires, until withdrawn we are required to follow the Memo and its mandate and prove as required, the presence of employer-employee relationship for a successful H1b petition.

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