Changes to the H-1B Process
Holders of H-1B visas and their employers face much more scrutiny now than they did in the past. For example, H-1B visa holders who travel outside the United States and seek re-entry are placed under a high degree of scrutiny when they return. The USCIS has also increased site visits and audits and there are new regulations regarding the placement of H-1B workers and their employer/employee relationship.
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Onsite Wage Investigation
Since 2009, the USCIS has hired contractors (Site Inspectors or SIs) to do site visits at employer work sites. These site visits are part of the Administrative Site Visit Verification Program and are intended to ensure that employers are paying H-1B nonimmigrants the prevailing wage for their job duties. The Site Inspectors also determine whether:
- The employer work site is a legitimate organization/business
- The organization knew of the employee's H-1B status and job duties
- The H-1B visa holder/beneficiary was in fact working for the business
- The beneficiary was performing the job duties listed in the job description
Neufeld Memo: Control Over H-1B Petitioner
In January of 2010, Donald Neufeld, Associate Director of Service Center Operations for the USCIS, issued a memorandum that further defines the requirement that a valid employer-employee relationship should exist between the H-1B petitioner and beneficiary. In order to meet the requirement, the employer/petitioner must maintain adequate control over the employee/beneficiary. The Neufeld Memo scrutinizes businesses that place the employee at a third-party worksite and states that self-employed beneficiaries, independent contractors and some third-party placements do not comply with the immigration regulations.
The USCIS will determine if the petitioning employer has a right to control the employee through the following factors:
- Who has supervision of the employee?
- Who has the right to control the employee's day-to-day work?
- Who is able to hire, pay and fire the employee?
- Who can claim the employee for tax purposes?
- Who provides employee benefits?
- Is the employee's work and end-product directly linked to the employer's business?
The businesses that are most affected by the Neufeld Memo include consulting firms that place employees at different companies to complete tasks and other companies offering employment opportunities on third-party worksites.
Click here to read more about The New Export Control Attestation Requirement on Form I-129
|Cap Type||Cap Amount||Cap Eligible Petitions||Date of Last Count|
|H-1B Regular Cap||65,000||32,200||9/9/2011|
|H-1B Master's Exemption||20,000||16,700||9/9/2011|
Speak With an Immigration Lawyer About H-1B Changes
The immigration attorneys of NPZ Law Group, represent clients on all sides of the employment relationship, including consulting companies and third-party companies. We help employers file H-1B petitions and collect the evidence they now need to prove that they have a valid employer/employee relationship. We also provide guidance to companies who are facing site inspection or whose petitions have been returned for lack of sufficient evidence of the employer/employee relationship.
To discuss how the new H-1B visa regulations affect you or your business, contact our law firm today.