H-1B : Tougher Standards in Place
The filing period for new H-1B visas will soon open on April 1st 2010, for a start date of October 1, 2010. The date that USCIS considers cases “accepted” is when the USCIS takes possession of the H-1B application and not the date that the application is postmarked.
Tips for employers considering filing an H-1B petition are:
- Start early as there are delays in getting approval of LCA which are caused by glitches in the new Department of Labor computerized system.
- We strongly suggest employers to identify applicants that will be subject to a cap such as new hires, or current employees with a non-immigrant status. For instance, F-1 students on OPT, H-3 trainees, and J-1 exchange visitors who will not be permitted to work beyond October 1, 2010 and will need the employer to file a H-1 petition.
- In addition, we recommend employers identify a bona fide position that requires a minimum of a bachelor’s degree or its foreign equivalent.
The USCIS now requires a very detailed job description, including job duties and responsibilities, in order for approval. The recent memo issued by USCIS in January 2010, requires an employer to establish a valid employer-employee relationship and the relationship has been interpreted by the USCIS to mean more than and go beyond the right of an employer to hire and fire, to pay a salary, and to place an employee on a payroll. In fact, based on the recent memo, the valid employer-employee relationship is to hinge on an employer’s right to control the means and manner in which an employee performs his or her work. So the USCIS will be looking for corresponding evidence that can include, but not limited to, whether the employer supervises the employee, claims the employee for tax purposes, provides the employee benefits, and how the employer evaluates the work product of the employee, in order to demonstrate control of the employer over the employee. This memo, no doubt, places greater burdens of proof upon IT consulting companies and staffing companies that use third-party placement models.
In addition, based on the memo, an employer petitioning for an H-1B visa holder must show that the right to control the employee’s work will continue to exist throughout the duration of the employee’s employment with the petitioning employer. If the employer is able to show that the employer-employee relationship will exist only for a portion of the requested H-1B validity, then the USCIS will limit the approval to the time period of the qualifying employment established by the submitted documentation.
With tougher H-1B standards, we recommend employers to start the H-1B process early, be prepared to submit more documentation than before, and to work with a proactive immigration attorney.