In a major change to H1B standards, the U.S. Citizenship and Immigration Services said it is adding stricter, more rigid expectations for both employers and H1B beneficiaries.

The January 8, 2010 Neufeld memorandum significantly altered USCIS’ definition of the employer-employee relationship as it relates to H-1B third-party worksite placements, and has the potential to reach other aspects of employment-based immigration as well. The memo also departs from long-standing precedent and concludes that persons with a substantial interest in a petitioning company cannot, in most cases, qualify as a beneficiary of an employment-based nonimmigrant or immigrant visa. A new guidance emphasizes that a H1B petitioner must show that a valid employer-employee relationship will exist throughout the validity period.

The implications are that petitioners will need to provide detailed documentation of the employment relationship and work itinerary, if the beneficiary is placed at client sites during employment.

The new guideline allows a worker to be placed at a client site provided the foreign national can assumes ultimate control of his work status.

What the new directive also means petitions for self-employed individuals could get stricter. Pure staffing arrangements may no longer qualify for the H1B classification because the necessary employer-employee relationship cannot be demonstrated.

There will be an increase in the kinds of documentation employers will need to provide in initial petitions and extensions. Immigration Attorneys around the country were invited to participate in a stakeholders call with USCIS yesterday (February 18), and Chatham Legal participated in this call, to discuss and provide their (heated) discontent with the new stricter memo. In an effort to improve on fraudulent chopshop type employers, the memo is overarching and changing what the original intent and purpose of the H-1B visa, allow highly skilled qualified workers to be employed in skill shortage occupations. The types of employers and dynamics of economy change the landscape of who and what an employer looks like. It was clear from yesterday’s meeting, this conversation is far from over and we hope  USCIS  liberalizes thier policies toward employers.

What does all this mean as you prepare H-1B petitions and respond to RFEs? And what is the potential impact on your employment-based practice including FDNS site visits and advising an employee regarding travel? Contact Chatham Legal to assist you in navigating this new era for H-1Bs.

The upcoming Sundance Film Festival in Utah, which will feature 189 feature films, documentaries and animations, is a chance to reflect on a vital, but often ignored, spoke in the immigration wheel.

Two visa categories, the O and the P visa, usually forgotten in the slew of Hs and Ls, are brought to the forefront during events like Sundance.

The O-1 visa category is for individuals with an extraordinary ability in the sciences, arts, education, business, or athletics. Usually those eligible have attained excellence of the order of an Olympic medal or a Grammy Award.

However, in the absence of such a glittering accolade, the applicant can still qualify for the visa status by showing sustained national or international excellence. Assistants of these individuals are usually eligible for an O-2 visa.

The P-1 visas don’t require such outstanding levels of achievement and are for entertainment groups, athletes and artists participating in cultural exchange programs. Applicants must be able to substantially prove that their achievements are renowned, leading or well-known in more than one country.

P-2 visas are reserved for artists and entertainers who perform individually or as part of a group but they must agree to a reciprocal exchange program that provides for the temporary exchange of artists and entertainers. Coaches of P-1 and P-2 applicants are usually eligible for P-3 visas.

It’s important to remember that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent.

It was an eventful year for all those who were impacted by employment immigration in 2009.

One of the most important changes was the introduction of the iCert System for the Labor Certification Application (LCA), which was effective from June 30. This was bound to have a major impact on employers, given that a certified LCAis a pre-requisite for filing an H-1B non-immigrant worker petition with the United States Citizenship and Immigration Service (USCIS).

The new system replaced the previous web-based procedure that allowed for same-day LCA approval. In the new system the Department of Labor (DOL) often took a minimum of seven business days to certify the application.

Due to technical glitches in the new system, employers have had to endure a number of delays in obtaining the LCAs. The transfer of data from the old system to the new platform hasn’t been as smooth as expected and the labor department has needed more time to verify the employer’s federal identification numbers. Often requiring a litany of IRS documents for FEIN verification.

The upshot of this was an USCIS announcement in November that it will begin accepting H1B petitions filed with uncertified LCAs for 120 days between November 5, 2009 and March 4, 2010.

This was in response to the complaints about delays in LCA processing. However, the USCIS said it would accept such petitions only if they are filed at least seven calendar days after the LCA is filed with the labor department, which one would need to verify with a confirmation email from the DOL.

The other big news of the year was the lackluster demand for filling of H1B work visas because of the economic slowdown. Though the first 45,000 applicants were received by the middle of May, a month and a half after the April 1 starting date, it took nearly seven months for the final 20,000 slots to be filled up.

It was only on December 21 that the USCIS announced that the cap was reached. This was a complete shift from the last few years when the USCIS had to undertake a computerized draw of lots to decide the successful applicants.

What a fiasco the Icert system has been since its implementation. It is especially ironic that there are difficulties acquiring certified LCAs when H1B numbers are still available. On November 5, 2009, USCIS announced that it will temporarily accept H-1B petitions filed without Labor Conditions Applications (LCA) that have been certified by the Department of Labor.

USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

If you or your employer are interested in pursuing an initial H-1B visa, extension, or change of employer petition, please contact Chatham Legal at 602-759-1880.

Expiration Date of Employment Eligibility Verification Form I-9 Extended to Aug. 31, 2012

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification) to Aug. 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of Aug. 7, 2009.

Employers may use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009. The revision dates are located on the bottom right-hand portion of the form.

For more information on USCIS and its programs, or to obtain Form I-9 and the Handbook for Employers, visit www.uscis.gov/i-9. Employers who do not have computer access can order the Form I-9 by calling our toll-free forms line at (800) 870-3676.

USCIS forms and information on immigration laws, regulations, and procedures can also be requested by calling the National Customer Service Center toll-free at (800) 375-5283.

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