“Neufeld Memo” of 1/8/2010 on Employer-Employee Relationship

News Release from Jewell & Associates, PC - January 13, 2010

On January 8, 2010, USCIS’s Associate Director, Service Center Operations, Donald Neufeld, issued a memo making additions to the Adjudicator’s Field Manual (AFM), the manual used by USCIS officers in adjudicating nonimmigrant and immigrant visa petitions, including H-1B petitions.  The January 8, 2010 “Neufeld Memo” is intended to provide guidance in determining the existence of an employer-employee relationship in the context of H-1B petitions, including H-1B petitions in which an owner of the petitioning entity is also the H-1B beneficiary, and H-1B petitions involving third-party site placements.    The memo appears designed to limit the approvability of such H-1B petitions.  The memo is troubling in that it is not fully consistent with the existing federal regulation at 8 CFR §214.2(h)(4)(ii)(2) that identifies the factors defining an employer-employee relationship.

Under accepted principles of administrative law, it is not proper for USCIS to make significant new rules through the issuance of memos.  Under the Administrative Procedure Act, significant changes in agency regulation, policy or practice require that appropriate notice be given to the public and that the public be permitted to comment.  Accordingly, we expect the Neufeld Memo to be met with vigorous opposition and a call for withdrawal of the memo.

The Neufeld Memo is available on the USCIS web site at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

© Jewell & Associates, PC 2010

DOL implements TARP restrictions on H-1Bs

News Release from Jewell & Associates, PC - February 19, 2009

The U.S. Department of Labor’s electronic portal for filing Labor Condition Applications (LCAs) in support of H-1B petitions now contains a warning to employers that have received TARP funding regarding the limitations placed on their H-1B hiring by the American Recovery and Reinvestment Act of 2009 (the “stimulus bill”).  The warning states that an employer that has received TARP funds are prohibited from hiring H-1B nonimmigrants for new employment unless the employer has complied with the additional attestations required of “H-1B-dependent” employers – attestations regarding the non-displacement of, and recruitment of, U.S. workers. Information regarding these additional attestations can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiatives/eesa/transactions.shtml.

© Jewell & Associates, PC 2009

H-1B and L-1 visa reforms passed by Congress

News Release from Jewell & Associates - November 22, 2004 On Sunday, November 21, 2004, Congress passed the Fiscal 2005 Omnibus Appropriations Bill (H.R. 4818), which contains significant amendments to the H and L visa categories.  The bill will be presented to the President for signature shortly.  Upon signing by the President, the bill will have been enacted into law.  Some of the bill’s key immigration provisions include:

20,000 new H-1Bs: The new law will exempt from the annual H-1B cap 20,000 H-1Bs with advanced degrees from U.S. universities. This provision will go into effect 90 days from the date of enactment.

Increase in H-1B filing fees: Effective immediately upon enactment, the new law will restore the supplemental H-1B filing fee known as the “ACWIA fee,” and increase it to $1,500 per petition. Employers with no more than 25 full-time employees in the U.S. will be assessed only half of the full fee, however. In addition, each petition for an initial H-1B will carry a $500 supplemental fee that will go into a government account to be used for fraud-detection.

Change in calculation of the prevailing wage: The new law will eliminate the “95% rule” and instead require H-1B employers to pay at least 100% of the local prevailing wage for the occupation in question. However, the law will also require governmental surveys made available to employers for purposes of determining the prevailing wage to provide four levels of wages commensurate with experience, education, and the level of supervision. If a two-level wage survey is used (such as the widely used OES Survey, which provides only an “entry level” and an “experience” wage), the law will provide a formula for calculating the two additional intermediate levels. These provisions will go into effect 90 days from the date of enactment.

Restoration of requirements for “H-1B-dependent” employers: The new law will restore the requirement that employers who meet the definition of “H-1B dependent” or of “willful violators” make a non-displacement attestation (an attestation that U.S. workers have not been displaced) in connection with any H-1B filings. This provisions will go into effect 90 days from the date of enactment.

Limits on placement of L-1Bs at client sites: The new law will prohibit L-1Bs from being principally stationed at the worksite of an unaffiliated employer if L-1B employee will be controlled and supervised by the unaffiliated employer, or if placement of the L-1B employee at the third-party site is part of an outsourcing arrangement instead of in connection with the provision of a product or service involving specialized knowledge specific to the L-1B employer. This provision will apply to initial, extended or amended L-1B petitions filed 180 days from the date of enactment.

Restores 12-month service requirement to blanket L-1s: The new law replaces the requirement that beneficiaries of “blanket” L-1 petitions have only six months of service to the employer abroad with a twelve-month requirement. The twelve-month rule will apply only to requests for initial L-1 classification filed on or after the 180^th day from the date of enactment.

© Jewell & Associates 2004