Saturday, January 16, 2010

H-1B Strategic Planning Teleconference

MU Visa Advisor
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):


- 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.


- 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.

Link to USCIS Memo:

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