Law Offices of Kamlesh Tewary, P.C.
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Feb 21, 2010 -
The USCIS has released a memorandum clarifying its position on employer-employee relationships in the H-1B context. More specifically, the memorandum explains the USCIS's interpretation of "United States employer," which is a term that is defined at 8 C.F.R. Sec. 214.2(h)(2)(i)(
A). USCIS will determine whether a particular petitioner qualifies as a United States employer on a case-by-case basis, taking into account a number of common law factors. Basically, the touchstone of employment is control over the manner and means by which work is performed. The factors specified in the memo are similar to the factors used by the IRS in determining whether a worker is an employee or an independent contractor. The practical significance of the memorandum is two-fold. First, USCIS has slyly avoided precedent decisions allowing so called H-1B "self petitions." Under the current interpretation, a proprietor of a business will no longer be able to sponsor himself/herself for an H-1B visa through the company since there is no true control by the company over the individual. Secondly, the memo states that IT consulting companies that place their payroll employees at third party sites may need to establish that they qualify as U.S. employers (within the meaning of 8 C.F.R. Sec. 214.2(h)(2)(i)(
A)) on a case-by-case basis. Notably, the FAQ to the memorandum explicitly states that it "does not change any of the requirements for an H-1B petition." There are certain steps that employers can take to strengthen the kind of evidence that would be provided in response to an RFE questioning employer control. Also, the memorandum does not address qualification by IT consulting companies under the regulation for agents.
**Information in this press release is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.**
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http://www.prlog.org/10542007/1The Law Offices of Kamlesh Tewary, P.C. has been committed to the provision of exceptional legal services since 1990. We have a particular familiarity with the legal needs of information technology firms, especially in the area of business immigration.
