10 Reasons Why The Neufeld H-1B Memorandum Should Be Withdrawn


      1. The memorandum is in violation of the Administrative Procedures Act (APA), which governs rule-making by government agencies and sets forth minimum procedures which must be followed by government agencies issuing new rules. The United States Citizenship and Immigration Services (USCIS) did not follow the procedures required by the APA when it unilaterally changed the requirements for an H-1B employer-employee relationship.
      2. Though the intended target of the H-1B memorandum was clearly IT Consultants, its consequences extend far beyond the IT Consulting profession. For example, doctors in many circumstances would no longer meet the H-1B employer-employee requirements because many are employed by entities other than the hospitals in which they perform their day-to-day services.
      3. The policies set forth in the memorandum will negatively impact H-1B employers and employees alike. The memorandum imposes evidentiary obligations that an H-1B employer may not necessarily be able to fulfill at the time of the petition, such as letters from the end clients in the context of IT Consultants. These requirements are extremely cumbersome and make it very difficult for H-1B employers to petition for legitimately needed H-1B employees.
      4. The adjudication policies outlined in the memorandum will undoubtedly spread to other nonimmigrant visas and further the effects of this illegal rule-making. If the Neufeld Memorandum is not withdrawn, not only will such policies have an adverse effect on adjudications in the H-1B visa category, but will embolden the USCIS to continue illegal rule-making in other visa categories.
      5. The Neufeld Memorandum introduces new factors to be considered when evaluating an H-1B employer-employee relationship. The current regulations define an H-1B employer as one which is “indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee.” The memorandum’s employer-employee relationship requirements far exceed the scope of the current regulation.
      6. The Neufeld Memorandum creates more confusion than clarity surrounding the requirements for an H-1B employer-employee relationship, especially because the memorandum contains internal inconsistencies regarding the requirements of employee control. The memorandum is riddled with contradictions regarding whether the legal standard is “actual control” or the “right to control” the H-1B employee.
      7. The memorandum creates a greater paperwork burden for both employers and the USCIS. The last thing struggling employers need in this economy is a greater amount of paperwork. With business resources stretched to the breaking point already, the additional evidentiary requirements outlined in the Neufeld Memorandum could be detrimental to many U.S. businesses.
      8. Many H-1B employees attempting to renew their visas will be unfairly denied because the Neufeld Memorandum employer-employee relationship requirements have changed since the beneficiary’s last visa issuance/renewal. Though their “previously approved” employer-employee relationship will not have changed, their H-1B renewal could be denied because the USCIS has single-handedly changed the employer-employee relationship criteria.
      9. Given the implementation of the Neufeld Memorandum’s new employer-employee relationship criteria, some H-1B workers may be in danger of having their visas revoked through no fault of their own. It would be within the discretion of the USCIS to revoke any H-1B visas they feel do not meet the requirements set forth in the Neufeld Memorandum, though no circumstances would have changed since the visa approval.
      10. The USCIS has claimed the memorandum was issued to provide consistency in adjudication procedures across the Service Centers, but in reality the memorandum’s contents are open to a myriad of interpretations. Thus, the memorandum is likely to have the opposite effect and result in varied decisions that are highly inconsistent across the Service Centers.

I know I am supposed to list only the top 10 reasons. But I could not resist adding one more:

    1. USCIS has a history of committing clear violations of the law and backing out when they find themselves in hot water. The most recent incident is when USCIS had to extend to Aug 17, 2007 accepting adjustment of status filings under the July 2007 Visa Bulletin, when they illegally tried to stop accepting cases by claiming every available visa number in order to stop petitioners form legally filing their adjustment of status petitions.

Why Is Citizenship Better Than A Green Card?

bigstock-Passport-Gavel-5802855Many permanent residents consider attaining a green card to be the final step in the immigration process. Most green cards are valid for 10 years and can be renewed indefinitely. Consequently, a surprisingly large number of permanent residents renew their green cards for decades and never naturalize or, in other words, become citizens of the United States. While it is true that the green card provides a foreign national with the ability to live and work permanently in the United States, there are a multitude of benefits conferred to U.S. Citizens for which green card holders are not eligible. All permanent residents should be aware of the advantages of U.S. Citizenship and make an informed decision about naturalization.

First, U.S. Citizenship is not a status that needs to be maintained or renewed and, barring the existence of any fraud or misrepresentation in obtaining citizenship, cannot be revoked. Accordingly, U.S. Citizens can travel abroad for extended periods of time without the risk of abandoning their privileges to live and work in the U.S. A U.S. Citizen can even live permanently in another country and return to the U.S. as often or as little as they desire. A naturalized citizen can obtain a U.S. passport and avail themselves of the U.S. Government’s assistance abroad. As U.S. Citizenship cannot be revoked except for fraud or misrepresentation, U.S. citizens are immune from deportation. While it is certainly not assumed that any foreign national would willfully or intentionally violate the law, if placed in such circumstances a green card holder would be deportable whereas a U.S. Citizen would not.

Another set of important citizenship benefits are those involving the political process. A common concern among foreign nationals, including permanent residents, is that they have no input into laws that significantly impact their lives. A naturalized citizen is entitled to vote in local, state and federal elections, as well as be a candidate for and hold most political offices. On average, 630,000 people are naturalized each year and this amounts to just a small percentage of the number of qualified permanent residents. If the eligible population of permanent residents decided to naturalize, the foreign-born U.S. Citizen population would have tremendous voting power and potentially be able to exert great influence over the laws affecting citizens and foreign nationals alike. In addition, U.S. citizens are allowed to apply for and hold certain government jobs for which green card holders are generally not permitted.

Lastly, U.S. Citizens are able to sponsor family members for immigration to the U.S. and, under certain circumstances, have the ability to pass citizenship along to their foreign-born minor children. The immediate family members of U.S. Citizens are not subject to the same visa quotas as the family members of lawful permanent residents, making for faster processing times for relatives of U.S. Citizens. Furthermore, U.S. Citizens can sponsor a greater number of family members for immigration than permanent residents. Overall, these benefits are of monumental importance when trying to keep families together.

It would behoove any permanent resident considering citizenship to apply at their earliest opportunity, as the filing fees and naturalization application process continues to become more cumbersome over time. Ultimately, the benefits of U.S. Citizenship greatly outweigh the presumed inconveniences of the application process. Eligible permanent residents should be encouraged to complete the final step in the immigration process — U.S. Citizenship. If not for themselves and their family members, then for all of the foreign nationals who do not currently have a political voice in the U.S.

H-1B Visa Holders: Is It Safe To Leave The U.S.?

bigstock-Passports-31148Many H-1B visa holders were alarmed by the recent news that several H-1B workers attempting to enter the United States at Newark Airport were either denied entry and sent back to their home countries or placed in expedited removal proceedings. While it has become clear in the weeks since that Customs and Border Protection (CBP) was targeting certain H-1B workers and petitioning companies involved in a fraud investigation, such incidents raise legitimate concerns amongst H-1B visa holders seeking to travel outside of the U.S. Is it safe to travel outside of the U.S. and, if so, what is to be expected at the port of entry? It is certainly still safe for H-1B visa holders to travel outside of the U.S, but travelers should be cognizant of the fact that they will be required to prove their admissibility to re-enter the United States.

Though a foreign national may have a valid H-1B visa in their passport, they must prove their admissibility to the Customs and Border Protection (CBP) Officer at the port of entry each time they return to the United States. It is important for any visa holder, but especially H-1B visa holders, to be prepared at the port of entry to prove any assertions made by the petitioning employer in the I-129 Petition for Nonimmigrant Worker. This will likely require the H-1B visa holder to carry additional documentation they would not necessarily carry anyway.

It is advisable for H-1B workers to possess a copy of their entire I-129 Petition for Nonimmigrant Worker, including the certified Labor Condition Application, as well as their two most recent pay stubs reflecting the fact that they are currently employed and being paid the prevailing wage or higher. The petitioning employer should also be prepared to field on-the-spot questions from a CBP Officer calling to verify information provided by the foreign national at the port of entry. Indeed, the CBP has made no secret of the fact that they will compare publicly available information, such as company websites or media reports, to the information provided in a petition. Thus, it is imperative that information in the petition be consistent with, if not identical to, publicly available information.

In light of the events transpiring at the Newark Airport, CBP has stated that random security checks will be implemented at Newark Airport, particularly for those individuals traveling with an employment-based visa. Moreover, the Newark Airport will be instituting additional screening measures, including detaining lawful permanent residents with a post-1998 criminal conviction and automatically sending individuals with a pending I-751 petition for secondary inspection. While these changes have only been implemented at the Newark Airport thus far, they are likely a sign of things to come at other ports of entry.

Therefore, an H-1B visa holder should not be afraid to travel outside of the United States, but should always remember they can never be too prepared for inspection at the port of entry upon return to the United States. If a foreign national has questions regarding whether they should travel outside of the U.S. and what they should expect at the port of entry, they should contact an experienced immigration attorney to discuss their specific situation prior to departure.

The H-1B Visa Interview: What Has Changed?

bigstock-Immigration-3151682A Columbus, Ohio Client asked me what has changed at the embassy interview and what to expect due to recent H-1B policy changes. So I thought a blog on this topic is appropriate. The H-1B visa is an employment-based, non-immigrant visa available for foreign national workers in specialty occupations. Unless a foreign national is already in the United States and eligible for a change of status, they will have to visit a U.S. Consulate or Embassy to obtain an H-1B visa. Notably, the U.S. Department of State has recently reiterated that “visa applications are now subject to a greater degree of review than in the past.” Thus, it is more important than ever for an H-1B visa applicant, especially those in consulting positions in the IT industry, to know what to expect at the U.S. Consulate or Embassy interview and how to prepare themselves.

An H-1B visa applicant should always check the website of their specific Consulate or Embassy for a list of items to bring to the interview. The foreign national should bring the following documents to the interview regardless of which U.S. Consulate or Embassy they will be visiting:

  • The original I-797 Approval for the H-1B Petition;
  • A copy of the entire I-129 Petition for Nonimmigrant Worker, including certified Labor Condition Application;
  • Their original passport, as well as a copy;
  • Their original educational documents – such as diplomas, transcripts and certificates – as well as copies.
  • The completed Nonimmigrant Visa Application Form (DS-156 or DS-160) and, if necessary, the Supplemental Nonimmigrant Visa Application (DS-157);
  • Two passport style photographs; and
  • A letter from the prospective U.S. employer confirming the specialty occupation, wage and intent to hire the foreign national.

If the foreign national is going to be working for a consulting company, the H-1B visa applicant needs to bring two employer letters to the interview. Not only should the foreign national bring a letter from the petitioning employer, but they should also bring a letter from the end client confirming the details of the project for which the foreign national’s services are being contracted.

Given the current downturn in the economy and the recent USCIS guidance on the employer-employee relationship for H-1B purposes, it is even more essential for an H-1B visa applicant to know how to respond appropriately to questions asked during the interview. The foreign national should be able to succinctly answer questions about the prospective U.S. position and actual employer (not to be confused with the end client), their qualifications for the position including educational information and prior experience, and how long they intend to remain in the U.S. It is important to remember that although the H-1B visa ultimately allows for dual intent, it is a nonimmigrant visa and the consular officer will be looking for indications that the foreign national has immigrant intent.

The H-1B visa applicant should always stress that their intended stay in the U.S. is temporary to comply with the nonimmigrant nature of the H-1B visa. Moreover, H-1B visa applicants working for consulting companies will likely need to prove the employer has positions to fill, that the foreign national will not be benched and that the petitioning employer will have sufficient control over the H-1B employee. It is highly recommended that any H-1B visa applicant preparing for an interview at the U.S. Consulate or Embassy consult with a knowledgeable immigration lawyer in advance of the appointment. Consular officers are reviewing H-1B visa applications, especially those for IT consultants, with increased scrutiny due to the downturn in the U.S. economy and, therefore, it is more necessary than ever for H-1B applicants to be fully prepared for the visa interview.

Financial Ability Standard In The I-140 Petition

bigstock-Passports-31148Employers filing for permanent residency on behalf of their employees must meet the financial ability test set forth in the regulations. In addition to examining whether a foreign national beneficiary meets the qualifications for the position in the I-140 Immigrant Petition For Alien Worker, the United States Citizenship and Immigration Services (USCIS) also scrutinizes the sponsoring employer’s ability to pay the foreign national the proffered wage. Though the sponsoring employer does not have to pay the foreign national the proffered wage until the foreign national has received their green card, the employer has the on-going burden of proving their ability to pay. This obligation begins when the foreign national’s priority date is established and ends only when the foreign national receives their green card, at which point in time the employer is responsible for actually paying the proffered wage. While the process has been criticized by courts as illogical and not an honest or accurate test of the employer financial ability, it remains today as the method by which employers financial ability is determined.

Pursuant to 8 CFR § 204.5(g)(2), an employer can prove its ability to pay through different methods, depending upon the size of the employer. All employers can, but those with fewer than 100 employers must, prove their ability to pay through Annual Reports, Federal Tax Returns and/or Audited Financial Statements (“initial evidence”). Employers with greater than 100 employees have the option of submitting a statement from the company’s financial officer attesting to the employer’s financial stability and ability to pay. This can be done in lieu of or in addition to submitting Annual Reports, Federal Tax Returns and/or Audited Financial Statements with discretion exercised by USCIS in accepting the financial officer’s statement.

The burden of initial evidence can be heavy for smaller petitioning companies, especially during turbulent economic times when financial statements and tax returns might not portray an accurate picture of the employer’s long-term ability to pay. Absent an acceptable company financial officer’s statement, the employer must show financial ability using the net income approach, or the net current assets approach. Employers must show that their net income or net current assets exceed the total shortage in offered wage compared to actual pay for the cumulative of all pending permanent residency petitioned employees. The impact of this rule can be very difficult to meet for employers absent proper and advanced planning with a competent immigration attorney.

USCIS has acknowledged that employers may submit secondary sources of information to supplement the required initial evidence, but that the USCIS will review such evidence in their sole and absolute discretion. This means that even if an employer submits additional, relevant evidence of its ability to pay, the USCIS may not give it much, or even any, consideration. However, regardless of whether the USCIS is required to review and consider supplemental evidence, it is always advisable to include additional favorable evidence with the petition. If for no other purpose, the evidence will be part of the record in the event an appeal is necessary.

Further, USCIS released guidance on May 4, 2004 regarding when the adjudicating officer should make a positive ability to pay determination. The guidance indicated that positive ability to pay determinations should be made when initial evidence shows the petitioning employer’s income is equal to or greater than the offered wage, the petitioning employer’s net current assets are equal to or greater than the offered wage, or if the petitioning employer is currently employing the foreign national and paying the offered wage.

The burden of initial evidence can be heavy for smaller petitioning companies, especially during turbulent economic times when financial statements and tax returns might not portray an accurate picture of the employer’s long-term ability to pay. Absent an acceptable company financial officer’s statement, the employer must show financial ability using the net income approach, or the net current assets approach. Employers must show that their net income or net current assets exceed the total shortage in offered wage compared to actual pay for the cumulative of all pending permanent residency petitioned employees. The impact of this rule can be very difficult to meet for employers absent proper and advanced planning with a competent immigration attorney.

Fortunately, in the years since the USCIS issued its guidance on ability to pay determinations, the Administrative Appeals Office (AAO) has shown a tendency to consider evidence outside of the traditional initial sources of evidence. This type of flexibility is encouraging in today’s economy, but it is incumbent upon the petitioning employer to have provided additional evidence with the original petition. As the AAO is only able to consider evidence already in the record, petitioning employers should help the USCIS and AAO decide in their favor by providing as much favorable information as possible.

Labor Certification Attorney addressing PERM Roving Employee Problem

bigstock-Citizenship-documents-43205116Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelihood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area.

Arguably, if a foreign national’s work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee’s work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.

There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL’s attention to the case, possibly resulting in supervised recruitment.

A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee’s work location will be, a Notice of Filing should be placed at each of the employer’s current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner’s headquarters.

It is important to keep in mind that an employer’s obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.

Labor Certification Attorney On Experience Acquired With The Same Employer

bigstock-Citizenship-documents-43205116The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ’s on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is “not substantially comparable to the position for which certification is being sought.” This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as “a job or position requiring performance of the same job duties more than 50 percent of the time.” Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Employers should also consider whether the experience was gained with the same employer. Experience gained with a foreign parent, affiliate or subsidiary entity is usually not the same employer. By definition, the same employer is one with the same Federal Employer Identification Number (FEIN). Any experience the foreign national employee has gained with a related entity, inside or outside of the U.S., can be used for PERM purposes so long as the sponsoring employer has a different FEIN.

If the labor certification does require experience the foreign national gained in a position with the sponsoring employer, it is important that differences in the positions be sufficiently documented. This can be accomplished through position descriptions, a record of the percentage of time spent on the various duties, organization charts, and payroll records. Requiring experience the foreign national gained with the sponsoring employer can be detrimental to a case if the experience was not gained in a position that was substantially different, and it is incumbent upon the employer to prove as much. Thus, it is in the employer’s best interest to have as much evidence to substantiate their position as possible.