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.

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.

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.

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.

Editor’s note: This is a guest post by Vivek Wadhwa, an entrepreneur turned academic. He is a Visiting Scholar at UC-Berkeley, Senior Research Associate at Harvard Law School and Executive in Residence at Duke University. Follow him on Twitter at @vwadhwa.

I spent Columbus Day in Sunnyvale, fittingly, meeting with a roomful of new arrivals. Well, relatively new. They were Indians living in Silicon Valley. The event was organized by the Think India Foundation, a think-tank that seeks to solve problems which Indians face. When introducing the topic of skilled immigration, the discussion moderator, Sand Hill Group founder M.R. Rangaswami asked the obvious question. How many planned to return to India? I was shocked to see more than three-quarters of the audience raise their hands.

Even Rangaswami was taken back. He lived in a different Silicon Valley, from a time when Indians flocked to the U.S. and rapidly populated the programming (and later executive) ranks of the top software companies in California. But the generational difference between older Indians who have made it in the Valley and the younger group in the room was striking. The present reality is this. Large numbers of the Valley’s top young guns (and some older bulls, as well) are seeing opportunities in other countries and are returning home. It isn’t just the Indians. Ask any VC who does business in China, and they’ll tell you about the tens of thousands who have already returned to cities like Shanghai and Beijing. The VC’s are following the talent. And this is bringing a new vitality to R&D in China and India.

Why would such talented people voluntarily leave Silicon Valley, a place that remains the hottest hotbed of technology innovation on Earth? Or to leave other promising locales such as New York City, Boston and the Research Triangle area of North Carolina? My team of researchers at Duke, Harvard and Berkeley polled 1203 returnees to India and China during the second half of 2008 to find answers to exactly this question. What we found should concern even the most boisterous Silicon Valley boosters.

We learned that these workers returned in their prime: the average age of the Indian returnees was 30 and the Chinese was 33. They were really well educated: 51% of the Chinese held masters degrees and 41% had PhDs. Among Indians, 66% held a masters and 12% had PhDs. These degrees were mostly in management, technology, and science. Clearly these returnees are in the U.S. population’s educational top tier—precisely the kind of people who can make the greatest contribution to an economy’s innovation and growth. And it isn’t just new immigrants who are returning home, we learned. Some 27% of the Indians and 34% of the Chinese had permanent resident status or were U.S. citizens. That’s right—it’s not just about green cards.

What propelled them to return home? Some 84% of the Chinese and 69% of the Indians cited professional opportunities. And while they make less money in absolute terms at home, most said their salaries brought a “better quality of life” than what they had in the U.S. (There was also some reverse culture shock—complaints about congestion in India, say, and pollution in China.) When it came to social factors, 67% of the Chinese and 80% of the Indians cited better “family values” at home. Ability to care for aging parents was also cited, and this may be a hidden visa factor: it’s much harder to bring parents and other family members over to the U.S. than in the past. For the vast majority of returnees, a longing for family and friends was also a crucial element.

A return ticket home also put their career on steroids. About 10% of the Indians polled had held senior management jobs in the U.S. That number rose to 44% after they returned home. Among the Chinese, the number rose from 9% in the U.S. to 36% in China.

When we asked what was better about the U.S. than home, 54% of Indian and 43% of Chinese said that total financial compensation for their previous U.S. positions was better than at home. Health-care benefits were also considered somewhat better in the United States by 51 percent of Chinese respondents, versus 21 percent who thought it was better in their home country. (Indian respondents were split more evenly on this).

These were a self-selected group, people who had already left. But what about the future, the immigrants presently studying at U.S. institutions of higher learning? We surveyed 1,224 foreign students from dozens of nations who are currently studying at U.S. universities or who graduated in 2008. The majority told us that they didn’t think that the U.S. was the best place for their professional careers and they planned to return home. Only 6 percent of Indian, 10 percent of Chinese, and 15 percent of European students planned to settle in the U.S.

Many students wanted to stay for a few years after graduation if given a choice—58% of Indians, 54% of Chinese, and 40% of Europeans. But they see the future being brighter back home. Only 7% of Chinese students, 9% of European students, and 25% of Indian students believe that the best days of the U.S. economy lie ahead. Conversely, 74% of Chinese students and 86% of Indian students believe that the best days for their home country’s economy lie ahead. National Science Foundation studies have shown that the “5 year stay rates” for Chinese and Indians science and engineering PhD’s have historically been around 92 % and 85% respectively (NSF tracks these 5 years at a time, and the vast majority stay permanently). So something has clearly changed.

For Silicon Valley, and for the U.S., this is the wrong kind of change. To some degree, these responses reflected the moribund U.S. economy and the rough job prospects facing students. With U.S. unemployment at 10%, who cares if we lose the next generation of geeks? There won’t be jobs for them for years, anyway, until the U.S. job market recovers. And sure, I know the xenophobes are going to cheer my findings. They believe that foreign workers take American jobs away.

But a growing body of evidence indicates that skilled foreign immigrants create jobs for Americans and boost our national competitiveness. More than 52% of Silicon Valley’s startups during the recent tech boom were started by foreign-born entrepreneurs. Foreign-national researchers have contributed to more than 25% of our global patents, developed some of our break-through technologies, and they helped make Silicon Valley the world’s leading tech center. Foreign-born workers comprise almost a quarter of all the U.S. science and engineering workforce and 47% of science and engineering workers who have PhDs. It is very possible that some of the smart Indians who sat in the room with me holding their hand up on Columbus Day will start the next Google or Apple. Many of them will build companies which employ thousands. But the jobs will be in Hyderbad or Pune, not Silicon Valley.

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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