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FEBRUARY 5, 2010
Plan Now for 2011 H-1B Cap-Subject Filings
With the 2010 H-1B cap already reached, U.S. employers should now be identifying candidates, either new hires or employees working in a different status, such as F-1 students, who need H-1B visas for the next fiscal year that starts October 1. Because of the demand for these valuable but limited visa numbers, employers must be ready to file new H-1B petitions by April 1, when the filing period for cap-subject petitions begins, to ensure that their employees are able to start working on October 1. The H-1B visa category confers work-authorized visa status on foreign professionals, giving U.S. employers a valuable tool for recruiting global talent. The annual H-1B quota, set at 65,000, has consistently been reached until this year before the start of the fiscal year; for the two years before 2010, it was reached at the very beginning of the April 1 filing season. Employers should identify their H-1B candidates and then notify one of the Davis & Goldfarb attorneys, who will work diligently with you to ensure that new H-1B petitions are ready to file on April 1.
USCIS Issues Guidance on H-1B Employer-Employee Relationships
On January 8, 2010, USCIS issued a new policy memo on the required employer-employee relationship for H-1B petitions that has particular relevance if work is to be performed off-site. The memo addresses various scenarios involving off-site employment, including accountants traveling to client sites for auditing purposes, architects working on construction projects, and IT professionals assigned to develop computer systems at client companies, recognizing that some third-party placements meet the employer-employee relationship criteria. At the same time, the memo emphasizes the particular importance in these cases of establishing the employer's right to control the beneficiary's employment, and the need to address such questions as when, where, and how the beneficiary performs the work. USCIS lists the types of additional evidence it will consider to establish the employer's right of control. The agency will look for complete itineraries; signed employment agreements; contracts with third party clients; work orders or service agreements; job descriptions that emphasize the skills and tools needed to perform the work, and the product to be developed or service to be provided; employee benefits provided; and performance review policies. USCIS addresses problem scenarios involving self-employment, independent contractors, and computer consulting companies that provide staffing solutions, where the employer does not have the required right of control. Interestingly, the memo represents a policy shift in finding that a corporation may not file an H-1B petition on behalf of its sole shareholder, despite acknowledging that a corporation is distinct from its sole shareholder, because the employer would be unable to establish the requisite control.
BIA Overrules Matter of Perez Vargas on AC21 Job Portability
In Matter of Neto, 25 I&N Dec. 169 (BIA 2010), the Board of Immigration Appeals overruled its earlier decision in Matter of Perez Varga, 23 I&N Dec. 829 (BIA 2005) by giving Immigration Judges authorization to decide whether an approved employment-related visa petition, the I-140 petition, remains valid under INA § 204(j) after a change in jobs or employers. Section 204(j) was enacted as part of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) to provide job flexibility to long delayed applicants for permanent residence or adjustment of status. Under this provision, the approved I-140 petition remains valid for an individual with an application for adjustment of status that has been pending for more than 180 days even if the applicant changes jobs provided the new job is in the same or similar occupational classification. The BIA previously found that IJs lack jurisdiction to make this determination, but it reversed this finding in Matter of Neto, deciding that conferring jurisdiction would be more in line with the legislative purpose of AC21 to free applicants from having to file new employment visa petitions when they change jobs after a significant delay in adjudication.
Temporary Protected Status for Haitians
After the devastating January 12 earthquake in Haiti, the Department of Homeland Security designated temporary protected status (TPS) for Haitians who were in the United States when the earthquake occurred. This TPS designation will allow eligible Haitian nationals to continue living and working in the U.S. for up to 18 months. TPS is a temporary, humanitarian form of relief based on a determination that a foreign state is unable to handle the return of nationals due to environmental disaster or if an ongoing armed conflict poses a serious threat to personal safety. The 180-day registration period for eligible Haitian nationals to apply for TPS will end on July 20, 2010.
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