MU VISA ADVISOR: USCIS Filing Fee Increase


Effective November 23, 2010 USCIS filing fees will increase an average of 10%. Most employment-based petitions’ fees will be raised, although the dependent Form I-539, used for H-4, L-2, and several other status petitions, will decrease by $10.

Here is the chart of the increase for the most commonly-used employment-based immigration Forms.

New Fees Nov 23, 2010
I-129	$325
I-131	$360
I-140	$580
I-485	$1,070
I-539	$290
I-765	$380
I-907	$1,225

You can find the new fees on the USCIS’ webpage: www.uscis.gov.

H-1B and L-1 Filing Fee Increase for some employers

MU VISA ADVISOR: H-1B and L-1 Filing Fee Increase for some employers


A massive budget bill that recently passed the House and is expected to be approved in the Senate includes a major filing fee increase for certain H-1B and L-1 petitions. The filing fee increase is applicable to “new” petitions filed by any Employer with more than 50 employees of which at least 50 percent are in L-1 or H-1B* status.

With a great deal of both accurate and inaccurate information regarding the bill appearing on the internet, this MU Visa Advisor will allow you to properly assess the impact of this bill on your business.

To read more, please contact your MU attorney and have them send you a copy of the full MU Visa Advisor.

FSBPT Suspends NPTE Examination for Graduates of Overseas Programs

MU VISA ADVISOR

In a stunning development, the Federation of State Boards of Physical Therapy (FSBPT) today announced that it immediately has suspended National Physical Therapy Examination (NPTE) testing for all graduates of schools located in Egypt, India, Pakistan and the Philippines. India and the Philippines are, by far, the two largest suppliers of foreign-trained Physical Therapists. Graduates from schools in these countries will not be allowed to sit for US examinations for at least one year and probably longer.

The new exam, which is just for the foreign-trained, is to be called the NPTE-YRLY. FSBPT expects to launch the NPTE-YRLY in the fall of 2011. The FSBPT intends to offer the NPTE-YRLY only once per year, at select test sites to be identified at a later date.

The FSBPT website says that this action is a result of “ongoing security breaches by significant numbers of graduates of physical therapy schools from certain foreign countries.” Two years ago, the FSBPT eliminated the exam from being offered overseas. Today’s action disallows the exam from being offered in the United States as well.

FSBPT’s actions are the result of “compelling” evidence that reflects “systematic and methodical sharing and distribution of recalled questions by significant numbers of graduates of programs in the affected countries, as well as several exam preparation companies specifically targeted to these graduates.” FSBPT’s website says several exam preparation companies engaged in a variety of illegal actions, including widespread sharing of hundreds of live test items.
MU will pass along more news as we receive it.

If you have any questions about the issues raised in this MU Visa Advisor, please do not hesitate to contact Chris Musillo or Cindy Unkenholt.

MusilloUnkenholt LLC
3400 Carew Tower
441 Vine Street
Cincinnati, OH 45202

Neufeld Memo Lawsuit Filed

The Techserve Alliance (formally the NACCB), the American Staffing Association, and three private companies yesterday sued the USCIS alleging that the government illegally issued the Neufeld Memorandum. This issuance altered long-standing policy that has allowed staffing firms to obtain H-1B visas on the same basis as other companies.

While the Complaint has yet to be made public, the allegations are expected to be similar to those raised in prior discussions with USCIS.

In the Neufeld Memorandum, the USCIS decreed that many staffing relationships are barred from using the H-1B visa program because staffing companies are not “employers”.

But this is wrong. Existing law defines an “employer” as one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Plainly, staffing companies meet these characteristics. Instead of applying the law as it was written, the Neufeld Memorandum allows the USCIS to pay lip-service to these five factors.

The Memorandum has caused grave concerns for many companies that use the staffing model because of inconsistent adjudication and unlawful USCIS denials. The IT staffing industry has been particularly impacted. The Memorandum derisively referred to the IT staffing model as a “job shop”. Healthcare staffing models recently have also come under fire; USCIS Officers have used the spirit of the Neufeld Memorandum to attack heretofore acceptable and approvable staffing models.

If you have any questions about the issues raised in this MU Visa Advisor, please do not hesitate to contact Chris Musillo or Cindy Unkenholt.

Musillo Unkenholt LLC
3400 Carew Tower
441 Vine Street
Cincinnati, OH 45202
http://www.muimmigration.com/

Christopher T. Musillo, Esq.

Email Chris

Voice: 513-744-4080 Main voice: 513-381-8472
Fax: 513-322-0045

Cindy J. Unkenholt, Esq.
Email Cindy

Voice: 513-744-4090

Main Voice: 513-381-8472
Fax: 513-322-0046

Requirements for H-1B Petitions Involving Third Party Worksites

One of the most recent trends in the adjudication by the USCIS of H-1B petitions is additional scrutiny of petitions involving third-party worksites. This additional scrutiny can include a request for an itinerary, copies of contracts between the Employer and the end client, and/or a letter from the end client confirming the nature and length of the assignment.

US regulators have long been concerned that H-1B employers will prospectively file for H-1B petitions for future employees, even when the employer does not have actual work for the Beneficiary. Further, as a result of concerns of abuse within the H-1B program, the USCIS has more recently become focused on ensuring that there will be a valid “employer-employee relationship” throughout the validity period of H-1B status granted to the Employee.

Itinerary

The Service’s regulations at 8 CFR 214.2(h)(2)(I)(B) state that when services are to be provided in more than one location the petition “must include an itinerary with the dates and locations of the services or training.”

Historically the USCIS took a real world approach to this issue, as evidenced by the 1995 Memorandum of Michael L. Aytes, Office of Adjudications in the legacy INS. In that memorandum, Mr. Aytes stated that the regulation was “merely to insure that the alien has an actual job in the United States” and thus the requirement “can be met in any number of ways.” He went on to note that “a general statement of the alien’s proposed or possible employment is acceptable since the regulation does not require that the employer provide the Service with the exact dates and places of employment. As long as the officer is convinced of the bona fides of the petitioner’s intentions with respect to the alien’s employment, the itinerary requirement has been met.” In concluding, Mr. Aytes reminded USCIS adjudicators that the Employer’s attestations to the Dept. o f Labor regarding the payment of wages constitutes employment for the purposes of H-1B classification and urged adjudicators to give significant weight to a company’s demonstrated past practice of employing H-1B nonimmigrants in conformity with the statute and regulations.

More recently, however, the USCIS has used this regulation to require documentation of the location of employment for the entire period requested by the H-1B petition. This requirement for an itinerary can be problematic for many Employers with a business model based upon staffing end clients on an as needed basis. The USCIS has denied petitions where the Employer is unable to document where the Employee will be working for the entire period of time requested in the petition. Alternatively, the USCIS has limited the validity of the approval to the period the Employer is able to document.

Employer-Employee Relationship

One of the requirements of the regulations pertaining to the filing of H-1B petitions is that the Employer “has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee” 8 C.F.R. 214.2(h)(4)(ii).

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount.

The Memorandum outlines a number of factors to be considered including:

· the method and manner of supervision
· whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the
duties of employment
· whether the Petitioner has the ability to hire, pay and fire the Beneficiary
· whether the Petitioner evaluates the work-product of the Beneficiary
· whether the Petitioner provides employee benefits
· whether the Beneficiary utilizes any proprietary information of the Petitioner
· whether the Beneficiary produces an end-product directly linked to the Petitioner’s business
· whether the Petitioner has the abilty to control the manner, means, and the work product of the Beneficiary

Recommended Documentation for H-1B Petitions Involving Third-Party Placements

MU takes the position that the January 8, 2010 Memorandum issued by Donald Neufeld, Associate Director of the USCIS and the resulting policies of the USCIS in adjudicating H-1B petitions are ultra vires. We have joined the multitude of voices calling for a complete retraction of the Memorandum. However, until such time as the Memorandum is withdrawn, we recommend that our clients be prepared to present documentation of an itinerary and the Employer-Employee relationship as follows:

- Provide copies of contracts with the end-client. (MU can provide you with sample language to add to your contracts.)

- Obtain a letter from the end-client confirming the nature and length of the Beneficiary’s assignment. Note that if the assignment is for a limited duration, but can be extended indefinitely, this should be confirmed through the contract and/or the end-client letter. The end client is only confirming the possibility of an extension of the placement and has not made any wage or other attestations to the USCIS or the Department of Labor. (MU can provide you with sample end-client letters.)

- Ensure that contracts specifically state when a short-term assignment may be extended indefinitely. (MU can provide you with sample language so that the time-element of the contract is maintained yet complies with the Neufeld Memorandum.)

- Outline any and all methods o f control over the Employee (hire, fire, pay, supervise, benefits, licensure tools/instrumentalities, review/evaluations, or proprietary information). (MU can further explain typical elements of control outlined in the Neufeld Memorandum.)

- Ensure that contracts reference those aspects of control referenced above where applicable. (MU can assist you with reviewing your contracts.)

If you have any questions about the issues raised in this MU Visa Advisor, please do not hesitate to contact Chris Musillo or Cindy Unkenholt.

MusilloUnkenholt LLC
3400 Carew Tower
441 Vine Street
Cincinnati, OH 45202

Christopher T. Musillo, Esq. Cindy J. Unkenholt, Esq.
c.musillo@muimmigration.com c.unkenholt@muimmigration.com
Voice: 513-744-4080 Voice: 513-744-4090
Main voice: 513-381-8472 Main Voice: 513-381-8472
Fax: 513-322-0045 Fax: 513-322-0046

MU has launched our new free e-mail news service, MU Visa Advisor. If you or any of your team wishes to sign up for MU Visa Advisor, please send an email to mary@muimmigration.com.

USCIS Neufeld Teleconference

The USCIS held a February 18 teleconference aimed at addressing the myriad of questions and rumors that have surfaced since the publication of the Neufeld Memorandum a few weeks ago. The Neufeld Memo purports to clarify USCIS policy on the legality of H-1B workers who are placed at third-party worksites. Several times on the call USCIS officials reiterated that the Memo is not new law, but merely an explanation of their current interpretation of law.

The attendees would have none of it. Dozens of immigration attorneys, including MU’s Chris Musillo spoke on the teleconference. A litany of criticisms was hurled at USCIS. Members of AILA and other industry trade groups also spoke up on the teleconference and condemned the Memo. The criticisms ranged from the surreptitious nature of the development of the Memorandum, to the absence of legal due process, to the unintended consequences in related areas of law, such as DOS immigration officials at airports misapplying this DHS Memorandum.

The loudest disapproval was directed at the underlying law supporting the Memorandum. MU contends – and many other immigration attorneys – that the Memorandum is simply not adequately grounded in law. For that reason many called on the USCIS to withdraw the Memorandum.

In the Memorandum, the USCIS found that existing law does not define “employer-employee” relationship. But this is wrong. Existing law does define an “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. The Neufeld Memorandum pays lip-service to these five factors and attempts to distinguish the “right to control” characteristic as a superior characteristic.

MU recently has had several H-1B's approved in spite of the Memorandum. That having been said, MU recently has seen a new “stock” RFE on a few of our client’s cases. At this point, it is unclear how USCIS officials will analyze H-1B third-party worksites in light of this new “stock” RFE and the Memorandum.

On the teleconference, USCIS announced that there would be a second teleconference. The date of the teleconference is not set at this time, but it is expected that the call will take place in early March.

Neufeld Memo: First H-1B Cases Approved

MU is pleased to report that it has received our first H-1B decisions under the Neufeld Memorandum. All of these first cases have been approved. Approvals have been received from both H-1B Service Centers. All of these H-1B cases were either filed or received RFEs after the January 8, 2010 publication of the Neufeld Memorandum.

In all instances, H-1B employers placed employees at third-party worksites. MU argued that the employer retained legal authority to hire, pay, fire, supervise or otherwise control. We used a variety of approaches in these first cases tailoring our approach to the facts at hand. We have received approvals for cases involving IT professionals and healthcare workers.

It is important to note that these approvals do not mean that the application of post-Neufeld Memorandum cases is settled. Under the Neufeld Memorandum, USCIS may seek additional evidence about the employer-employee relationship in instances where the employee works at a third-party site. USCIS may be delaying application of the Memorandum for some later point in time. Or, these first few cases may have simply not received stricter scrutiny. Nonetheless these first few cases indicate that H-1B cases can receive approval even if the employee is employed at a third-party worksite.

AILA Letter on H-1 Staffing Memo

AILA has sent a comprehensive letter to USCIS Chief Counsel Roxana Bacon arguing that the USCIS ought to set aside the January 8 Neufeld Memorandum Guidance that purports to limit approvals of H-1s in instances where the Beneficiary is employed at a third-party worksite. The letter, which reads like a legal brief, calls into question the core legality of the issuance of the Neufeld Memorandum, and challenges the reasoning throughout the Memorandum.

The letter’s key points are:

1. The issuance of the Neufeld Memorandum is a substantive change to existing law. Such changes to law by Memorandum are illegal under the Administrative Procedures Act. Under the APA, regulatory agencies like USCIS must first publish proposed rules in the Federal Register. Then, the agency must allow the public to comment on the changes. The USCIS must then consider and respond to the public comment.

2. The entire reasoning of the Neufeld Memorandum is unsound. In the Neufeld Memorandum, the USCIS found that existing law did not define “employer-employee” relationship. AILA contends, correctly MU thinks, that existing law does define “employer-employee” relationship at 8 CFR 214.2(h)(4)(ii). An “employer” is one who may “hire, pay, fire, supervise, or otherwise control the work of any such employee”. Therefore the USCIS’ use of Supreme Court cases and common-law is improper since the definition is already right there in the definition.

3. To the extent that the USCIS applies the definition, it limits its focus to one of these five characteristics -- control – and fails to explore the other four characteristics – hire, pay, fire, and supervise.

4. Even if the USCIS feels that it needs help in defining “employer-employee,” the USCIS completely misapplies the relevant Supreme Court decisions. Cases such as Clackamas speak to the idea of balancing all characteristics and not limiting the analysis to the control characteristic.

5. When Congress last amended the relevant statutes in the law IMMACT90. It expressly sought to expand the definition of employer, not restrict it. USCIS is not legally allowed to violate Congress’ express intent.

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):

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@muimmigration.com). Mary will send in the dial-in information to you a few days before the call.

Link to USCIS Memo: http://www.docstoc.com/docs/22168979/H1B-Employer-Employee-Memo010810