gc28262
07-30 07:07 AM
Success Story: Showing a Valid Employer-Employee Relationship (http://shusterman.com/newsletterusimmigrationaugust2010.html#5)
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
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MatsP
February 15th, 2005, 02:46 AM
I have no knowledge of Nikon's lenses.
But really no-one but you can tell what lens you may need. It depends completely on what your photography style, subjects and conditions are. Same as if I asked you what car I should buy: If I like to drive fast on mountain roads, a sporty model would be great. If I have five kids that need taking to school every day, I need a minivan. If I work as a builder and need to transport material, a proper van or truck is what I need, etc, etc.
If you do a lot of indoors photos with poor lighting, a big aperture lens is what you need.
If you do a lot of outdoors wildlife shots, you need a long telephoto lens of some sort (300mm or more), preferrably with a big aperture so that you can get some decent shutter times in morning and evening light conditions as well...
If you do architecture and need wide-angles, something like the Sigma 12-24mm superwide zoom could come in handy (I'm sure Nikon does something similar, but I just don't know the Nikon lenses well enough to tell you what it is).
A 100mm (or thereabouts) macro lens is always a good thing, as it allows you to take close-ups, and can double as a portrait lens and any other duty where a 100mm lens is appropriate.
Think about the situations where your photography has been limited because the lens wasn't doing what you needed it to do, and figure out what lens would do the job for you. Then figure out how to afford it. ;-)
--
Mats
But really no-one but you can tell what lens you may need. It depends completely on what your photography style, subjects and conditions are. Same as if I asked you what car I should buy: If I like to drive fast on mountain roads, a sporty model would be great. If I have five kids that need taking to school every day, I need a minivan. If I work as a builder and need to transport material, a proper van or truck is what I need, etc, etc.
If you do a lot of indoors photos with poor lighting, a big aperture lens is what you need.
If you do a lot of outdoors wildlife shots, you need a long telephoto lens of some sort (300mm or more), preferrably with a big aperture so that you can get some decent shutter times in morning and evening light conditions as well...
If you do architecture and need wide-angles, something like the Sigma 12-24mm superwide zoom could come in handy (I'm sure Nikon does something similar, but I just don't know the Nikon lenses well enough to tell you what it is).
A 100mm (or thereabouts) macro lens is always a good thing, as it allows you to take close-ups, and can double as a portrait lens and any other duty where a 100mm lens is appropriate.
Think about the situations where your photography has been limited because the lens wasn't doing what you needed it to do, and figure out what lens would do the job for you. Then figure out how to afford it. ;-)
--
Mats
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redcard
09-27 07:49 PM
http://marketplace.publicradio.org/am.html
Dont see anything you mentioned about shortage of workers on Marketplace.
It would be great if we can get some support from David Heenan like Richard Florida.
Its just a thought,, maybe every IV member should buy this book and send it to their senator as a holiday gift..I am sure that most of these guys will not read it..but even 50% read or their staff read it, it will make an impact..
Dont see anything you mentioned about shortage of workers on Marketplace.
It would be great if we can get some support from David Heenan like Richard Florida.
Its just a thought,, maybe every IV member should buy this book and send it to their senator as a holiday gift..I am sure that most of these guys will not read it..but even 50% read or their staff read it, it will make an impact..
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deepakd
07-10 01:33 AM
USCIS do call the company, a friend of mine who already got his GC, USCIS called the company in India to confirm the employment.
Thanks
I would take my words back instead of never I would say the chances are slim that USCIS would call the employer. Never heard of this before this
Thanks
I would take my words back instead of never I would say the chances are slim that USCIS would call the employer. Never heard of this before this
more...
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sayonara
09-11 01:33 PM
My main concern is RD of 28th August.....Does that mean that we are falling out of August 17 window and our cases will be put on hold or may be denied.......
Atleast, if I had RD of July 2, 2007...when our cases reached USCIS....I would not worry about it that much.....
Now...when it get transfered to NSC, will we get new case #s....I think all cases at NSC starts with LIN....
Anybody else in same situation?
Did you guys talk to your Attorney?
I just sent an email to my Attorney and waiting for the reply....
I spoke to my attorney and he says there was some update from USCIS and now processing can be done at local centers (some change in july end is what he said) and according to him, its fairly common. I also googled and this was pretty common in 1999-2000 period. I also have a RD of aug 28th, worried that my counter of 180 days is increasing bcoz of this...
Atleast, if I had RD of July 2, 2007...when our cases reached USCIS....I would not worry about it that much.....
Now...when it get transfered to NSC, will we get new case #s....I think all cases at NSC starts with LIN....
Anybody else in same situation?
Did you guys talk to your Attorney?
I just sent an email to my Attorney and waiting for the reply....
I spoke to my attorney and he says there was some update from USCIS and now processing can be done at local centers (some change in july end is what he said) and according to him, its fairly common. I also googled and this was pretty common in 1999-2000 period. I also have a RD of aug 28th, worried that my counter of 180 days is increasing bcoz of this...
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gauravsh
02-26 01:54 PM
Ok, so the above says that you can get a "immigrant visa" based on approved 140 (for your case). In order to get that "immigrant visa" that will allow you to work "indefinitely", you need to actually apply for the the "visa". Based on your 140, you can apply for this "immigrant visa" in two ways. If you are outside of the country, do what is called "consular processing" where you apply for a immigrant visa at a US consulate in a different country. If you are already (legally) in the US, you apply for what is called adjustment of status. The problem is that these "immigrant visas" based on 140 are in short supply compared to demand. Join the queue.
... so whats your confusion?
No confusion now!! thanks.
... so whats your confusion?
No confusion now!! thanks.
more...
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Asfandyar
09-02 06:40 PM
"U.S. Visa Policy: Competition for International Scholars, Scientists and Skilled Workers "
Senate Judiciary Committee
Subcommittee on Immigration, Border Security, and Citizenship
--------------------------------------------------------------------------
DATE: August 31, 2006
TIME: 09:00 AM
ROOM: University of Texas at Dallas
OFFICIAL HEARING NOTICE / WITNESS LIST:
NOTICE OF SUBCOMMITTEE FIELD HEARING
The Senate Committee on the Judiciary Subcommittee on Immigration, Border Security and Citizenship has scheduled a hearing on "U.S. Visa Policy: Competition for International Scholars, Scientists and Skilled Workers" for Thursday, August 31, 2006 at 9:00 a.m. at the University of Texas at Dallas, The Erik Jonsson School of Engineering & Computer Science, TI Foundation Auditorium, Building ECSS, Richardson, TX.
Senate Judiciary Committee
Subcommittee on Immigration, Border Security, and Citizenship
--------------------------------------------------------------------------
DATE: August 31, 2006
TIME: 09:00 AM
ROOM: University of Texas at Dallas
OFFICIAL HEARING NOTICE / WITNESS LIST:
NOTICE OF SUBCOMMITTEE FIELD HEARING
The Senate Committee on the Judiciary Subcommittee on Immigration, Border Security and Citizenship has scheduled a hearing on "U.S. Visa Policy: Competition for International Scholars, Scientists and Skilled Workers" for Thursday, August 31, 2006 at 9:00 a.m. at the University of Texas at Dallas, The Erik Jonsson School of Engineering & Computer Science, TI Foundation Auditorium, Building ECSS, Richardson, TX.
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sin94
11-11 06:34 PM
Today my I140 case was updated online (I still have not received the RFE for the mulitple calls made or letters dispatched to the USCIS)
Application Type: I140, IMMIGRANT PETITION FOR ALIEN WORKER
Current Status: Document mailed to applicant.
On November 10, 2008 we mailed the document to the address we have on file. You should receive the new document within 30 days. If you do not, or if you move before you get it, call customer service.
I rechecked all offices address(old and new) no at the locations have received any news
Application Type: I140, IMMIGRANT PETITION FOR ALIEN WORKER
Current Status: Document mailed to applicant.
On November 10, 2008 we mailed the document to the address we have on file. You should receive the new document within 30 days. If you do not, or if you move before you get it, call customer service.
I rechecked all offices address(old and new) no at the locations have received any news
more...
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senthil1
06-30 10:46 AM
Why do you want labor substituion at this time when they are discontinuing for fraud? Are you working same company or joining the company for just labor substitution?
If you are waiting for long time for Gc then you can take risk. But if you are in US just for 1 or 2 years you have lot of time to get GC. If you are getting the labor in same company you are working now probably ok. But if you have too many uncertanities then it is better not to use it.
Thanks all. I think the labor only says BS + min 3 years experience in related field. What are the chances that if I proceed on Monday, I will get an RFE on this? And would there be anyway I could respond to that RFE successfully?
If you are waiting for long time for Gc then you can take risk. But if you are in US just for 1 or 2 years you have lot of time to get GC. If you are getting the labor in same company you are working now probably ok. But if you have too many uncertanities then it is better not to use it.
Thanks all. I think the labor only says BS + min 3 years experience in related field. What are the chances that if I proceed on Monday, I will get an RFE on this? And would there be anyway I could respond to that RFE successfully?
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sundar99
02-18 12:14 AM
I suspect there may be a backdoor to it
more...
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pankaj_singal
11-18 11:04 PM
This is a situation with my friend that I am posting under my name...
Questions are mostly related to regarding EAD situation
1. My friend is on H1 and have EAD (June'07 filer) for both him and his spouse... his spouse (secondary aplicant) is currently working on her EAD.. If his company lays him off... Would his wife have any effect on her employment?
2. Could he renew my EAD/AP on my own with no employer support (despite he has no job)
3. What if he goes to India on AP (or otherwise).. would that have effect on his wife's EAD/employment? If he goes to India on AP.. for how long could he go?
4. Could he take up any job and keep switching till priority date becomes current? Also what happens if and when priority date becomes current?
Thanks.
Questions are mostly related to regarding EAD situation
1. My friend is on H1 and have EAD (June'07 filer) for both him and his spouse... his spouse (secondary aplicant) is currently working on her EAD.. If his company lays him off... Would his wife have any effect on her employment?
2. Could he renew my EAD/AP on my own with no employer support (despite he has no job)
3. What if he goes to India on AP (or otherwise).. would that have effect on his wife's EAD/employment? If he goes to India on AP.. for how long could he go?
4. Could he take up any job and keep switching till priority date becomes current? Also what happens if and when priority date becomes current?
Thanks.
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andy garcia
12-21 01:20 PM
I want to be more specific. I have a full time job. I'd like to setup a business LLC to get some contract works. For tax benefit, I can deduct some business cost with it.
To setup a business LLC you do not even need to be in the US
To setup a business LLC you do not even need to be in the US
more...
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Winner
10-11 09:12 PM
Dear Friend I totally agree with you. I was with one of these employers and have moved away from them. As suggested by some members you can report about these fraudulent activities to DOL. I know it is dufficult to leave these employers as they make the employees to sign bonds and try to capture all the money that they have acquired in PF etc back in the native country.
These employers are to be blamed for the current economy condition of this country and the condition of immigrants like us.
I know there are some members in this forum who will try to shout you down and make you quite.
But I feel if one believe in what is right then one should go ahead irrespective of what others think.
Now that you have left your abusive employer, would you mind disclosing your ex-employer information?
These employers are to be blamed for the current economy condition of this country and the condition of immigrants like us.
I know there are some members in this forum who will try to shout you down and make you quite.
But I feel if one believe in what is right then one should go ahead irrespective of what others think.
Now that you have left your abusive employer, would you mind disclosing your ex-employer information?
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sobers
02-24 12:36 PM
ragz4u, ...you pipped me to the post..hehe..:)
Thanks, this is very informative!
Thanks, this is very informative!
more...
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GCBy3000
07-22 03:46 PM
Too early for this thread. Only you could see NO. Is there anyway to create a poll to change from No to YES when the checks are cleared. Then this will be useful, otherwise it is going to be a waste thread in next two days.
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usirit
07-19 09:22 AM
I live in Noblesville. Please let me know of meetings related to IV in Indianapolis or surroundings.
more...
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senthil1
09-08 09:25 PM
Which labor day 2009? 2010 or 2014?
Any News on Schumer's Labor Day announcements?
Any News on Schumer's Labor Day announcements?
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teachamerica07
08-01 06:04 PM
Will it work if the parole stamp on I 94 has expired ?
Should the stamp be kept valid by travelling out of the country and reentering on AP every year ?
Thanks for your input .
Should the stamp be kept valid by travelling out of the country and reentering on AP every year ?
Thanks for your input .
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crazyghoda
05-12 07:08 PM
Interesting. That's why I always fly the US - India non-stop by Delta or Continental nowadays. No more dealing with nonsense from 3rd countries in Europe and their rude immigration officers.
santa123
09-10 08:02 AM
http://mumbai.usconsulate.gov/cut_off_dates.html
:mad:
:mad:
:mad:
:mad:
:mad:
:mad:
GetGC08
05-11 09:14 AM
You were out of status in those 5 months. It does not matter at LC and I-140 stages only at I-485. However upto 180 days of out of status is forgiven when you file your 485, so you should be ok. THis is IN CASE you get an RFE for this. There is a good chance USCIS might even overlook this. Also if you left the US and returned any time after tha tou tof status, your slate is wiped clean (they are only supposed to check your status since your last entry into the US). So either way you should be ok... dont worry about it.
Hi,
Thanks a lot for your reply. I really appreciate it.
Well as you said if I went to India after those 5 months(when I was on bench) than that period of 5 months when I was on bench will be wiped out(it will be gone,clean). It means that USCIS will check my status after my last entry in to US!!
OR they may check everything when ever I was in US including when I was on bench(including my first entry into US to till date i.e. From Feb 2005 - Till date)????
I went to India in Nov 2006 & came back, so in that case my old records would be clean. B'cos I was on bench for 5 months in 2005.
Correct me if I am wrong on this.
Also as you said this will come in case of I-485 & USCIS might overlook this & may send RFE!! Any idea how to respond that kind of RFE??
I will really appreciate your response.
Thanks.
Hi,
Thanks a lot for your reply. I really appreciate it.
Well as you said if I went to India after those 5 months(when I was on bench) than that period of 5 months when I was on bench will be wiped out(it will be gone,clean). It means that USCIS will check my status after my last entry in to US!!
OR they may check everything when ever I was in US including when I was on bench(including my first entry into US to till date i.e. From Feb 2005 - Till date)????
I went to India in Nov 2006 & came back, so in that case my old records would be clean. B'cos I was on bench for 5 months in 2005.
Correct me if I am wrong on this.
Also as you said this will come in case of I-485 & USCIS might overlook this & may send RFE!! Any idea how to respond that kind of RFE??
I will really appreciate your response.
Thanks.
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