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Today, immigration practitioners and employers have needed to adapt to a myriad of changes in the H-1B professional worker program. It started a few years ago with stricter USCIS requirements on an H-1B employee’s itinerary if placed at an off-site work location. Then, in January 2010, the USCIS released the Neufeld Memo which redefined the employer-employee relationship, and made it harder for staffing firms to apply for H-1B visas. This presentation outlines how the USCIS has implemented this memo by issuing lengthy Requests for Evidence (RFE) on the ‘right to control’ issue, what to expect from a typical RFE, as well as how to properly respond to these RFEs to give H1B cases the best chance for success.
Citation preview
H-1B ‘Right to Control’ RFEs - What to Expect
and How to Answer Them
June 9, 2010
Murali Bashyam and Ame CoatsBashyam Spiro LLP
www.bashyamspiro.com
This Internet seminar is intended solely to provide information to the public. Nothing in this webinar should be taken as legal advice or legal opinion for
any individual case or situation.
The information is offered for general information and educational purposes only.
The participation in this webinar does not create an attorney-client relationship.
TODAY’S OBJECTIVES
BACKGROUND – NEUFELD MEMO
OVERVIEW EMPLOYER-EMPLOYEE RELATIONSHIP WHO DOES IT IMPACT WHAT DID WE PREDICT
NUTS AND BOLTS:WHAT AN H-1B ‘RIGHT TO CONTROL’ REQUEST FOR EVIDENCE (RFE) LOOKS LIKE
TEXT OF USCIS ‘RIGHT TO CONTROL’ RFE TEXT OF ‘RIGHT TO CONTROL’ RFE FOR H-1B EXTENSIONS
I RECEIVED AN H-1B ‘RIGHT TO CONTROL’ RFE – NOW WHAT?
HOW TO RESPOND TO THE RFE WHAT TO SUBMIT FOR H-1B EXTENSIONS
BACKGROUND – NEUFELD MEMO
OVERVIEWEMPLOYER-EMPLOYEE RELATIONSHIPWHO DOES IT IMPACTWHAT DID WE PREDICT
THE MEMO - OVERVIEW
• January 2010: USCIS issued a memo clarifying what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification.
• The memo also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.
Employer – Employee Relationship
• Master/Servant Relationship
• What’s the Bottom Line? CONTROL
• What Does ‘Control’ Mean? SUPERVISION
• But What About Hiring, Firing, Benefits, Taxes, etc.? – USCIS MIGHT NOT CARE!
WHO DOES THE MEMO AFFECT?
• H1B beneficiary/employee performing work at a third-party (end-client) worksite.
– Examples: IT consulting, independent contractors, healthcare staffing, etc.
GLIMPSE INTO THE FUTURE OUR PREDICTIONS WHEN NEUFELD MEMO WAS RELEASED…
• Employers whose business model may be viewed by the USCIS as within the third-party placement are likely to face RFEs in their H1B petitions.
• Review: – indicators of control– anticipate the need to prove control over their employees – modify practice – incorporate the factors to establish a direct employer-employee
relationship
NUTS AND BOLTS:
WHAT AN H-1B ‘RIGHT TO CONTROL’ REQUEST FOR EVIDENCE (RFE) LOOKS LIKE
TEXT OF USCIS ‘RIGHT TO CONTROL’ RFE
TEXT OF ‘RIGHT TO CONTROL’ RFE FOR H-1B EXTENSIONS
WHAT IS USCIS ASKING FOR NOW?!A TYPICAL USCIS RIGHT TO CONTROL RFE:
As an employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, you are required to establish by a preponderance of the evidence that a valid employer-employee relationship will exist between you and the beneficiary, and that you have the right to control the beneficiary's work, which may include the ability to hire, fire, or supervise the beneficiary. Also, you should be able to establish that the above elements will continue to exist throughout the duration of the requested H-1B validity period. You have requested a validity period from XXXX to XXXX.
In support of the petition, the following evidence was submitted to establish an employer-employee relationship:
Copy of a statement of work and letters between the vendor and the end-client
addressed to whom it may concern.
Copy of the position description;
A TYPICAL USCIS RIGHT TO CONTROL RFE – CONT’D
However, this evidence is insufficient to establish that a valid employer-employee relationship will exist for the duration of the requested validity period. The dates on the SOW of XXXXXX to XXXXXX do not cover the entire requested validity period on the petition.
Your petition documents the beneficiary's assignment of work with XXXXXXX is the vendor through whom the beneficiary works to provide services to XXXXXXXX. The documentation provided does not establish your right to control when, where, and how the beneficiary performs the job with a third party employer.
A TYPICAL USCIS RIGHT TO CONTROL RFE – CONT’DUSCIS must determine if you have the right to control the employee through evidence that describes (with
no one factor being decisive or exhaustive):
• the duration of the relationship between you and the beneficiary;
• whether you have the right to assign additional work to the beneficiary;
• the extent of the beneficiary's discretion over when and how long to work;
• the method of payment of the beneficiary's salary;
• the beneficiary's role in hiring and paying assistants;
• whether the specialty occupation work is part of your regular business;
• the provision of employee benefits;
• the tax treatment of the beneficiary;
• whether you can hire or fire the beneficiary or set rules and regulations on the beneficiary's work;
• whether, and if so, to what extent you supervise the beneficiary's work; and/or
• whether the beneficiary reports to someone higher in your organization.
A TYPICAL USCIS RIGHT TO CONTROL RFE – CONT’D
As such, it is requested that you demonstrate an employer-employee relationship with the beneficiary through the right to control the manner and means by which the product or services are accomplished for the duration of the requested H-1B validity period by providing a combination of the following or similar types of evidence. This list is not inclusive of all types of evidence that may be submitted. You may submit any and all evidence you feel would meet the employer-employee requirement.
Copy of signed Employment Agreement between you and the beneficiary detailing the terms and conditions of employment;
Copy of relevant portions of valid contracts between you and a client (with whom you have entered into a business agreement for which your employees will be utilized) that establishes that while your employees are placed at the third party work site, you will continue to have the right to control your employees;
Copy of your organizational chart, demonstrating the beneficiary's supervisory chain. Maintenance of Initial Employer-Employee Relationship
TEXT OF H-1B RFE FOR H-1B EXTENSIONS Your extension petition was filed without sufficient evidence to document that a valid employer-
employee relationship was maintained with the beneficiary throughout the previous H- 1B approval period.
You may provide a combination of the following or similar types of evidence to document that you and the beneficiary maintained the employer-employee relationship throughout the H- 1B approval period:
Copy of work schedules from prior years;
Copies of your state quarterly wage reports for the last four quarters that contain the name, social security numbers (last four digits only), and number of weeks worked by the beneficiary;
Copy of dated performance review(s); and/or
Copy of any employment history records, including but not limited to, documentation showing date of hire and dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective date.
I RECEIVED AN H-1B ‘RIGHT TO CONTROL’ RFE – NOW WHAT?
HOW TO RESPOND TO THE RFE
WHAT TO SUBMIT FOR H-1B EXTENSIONS
HOW TO RESPOND TO THE RFE – WHAT TO SUBMIT
WHAT WE SUBMITTED WITH AN RFE
Employment Agreement Extended SOW – Hey, It’s Worth Asking! Employee’s Health Insurance Card Employee’s Health Insurance Enrollment Form Listing Employer by Name Annual Performance Reviews Salary Raise Letter Employee’s W-2 and W-4 Organizational Chart Weekly Appraisal Reports Employer’s Payroll Journal Listing E’ee by Name State Quarterly Tax Reports
HOW TO RESPOND TO THE RFE – WHAT TO SUBMIT – CONT’D
TOTALITY OF CIRCUMSTANCES
NO ONE PIECE OF EVIDENCE MAKES OR BREAKS A CASE
SUM IT UP – MAKE THE CASE!
WHAT TO SUBMIT FOR H-1B EXTENSIONS
Same Types of Documents as Previous Slide
Establish Employer-Employee Relationship
For the ENTIRE Period of Employment!
QUESTIONS?Please Type Your Question into
the Chat Box on the Webinar Panel…
