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Chris Musillo on Nurse and Allied Health Immigration

Requirements for H-1B Petitions Involving Third Party Worksites

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One of the requirements of the regulations pertaining to the filing of H-1B petitions is that the Employer "has an employer-employee relationship with respect to the employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee" 8 C.F.R. 214.2(h)(4)(ii).

Historically, documentation of the ability to hire, pay and fire an Employee was sufficient to demonstrate the required Employer-Employee relationship under a totality of the circumstances test. On January 8, 2010 the USCIS issued a Memorandum entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" which reflects the current position of the USCIS on this issue. In this Memorandum, the USCIS takes the position that Petitioner (Employer) control over the Beneficiary (Employee) is paramount. The Memorandum outlines a number of factors to be considered including:

the method and manner of supervision
whether the Petitioner provides any necessary tools or instrumentalities for the Beneficiary to perform the duties of employment
whether the Petitioner has the ability to hire, pay and fire the Beneficiary
whether the Petitioner evaluates the work-product of the Beneficiary
whether the Petitioner provides employee benefits
whether the Beneficiary utilizes any proprietary information of the Petitioner
whether the Beneficiary produces an end-product directly linked to the Petitioner's business
whether the Petitioner has the ability to control the manner, means, and the work product of the Beneficiary


MU takes the position that the January 8, 2010 Memorandum issued by Donald Neufeld, Associate Director of the USCIS, and the resulting policies of the USCIS in adjudicating H-1B petitions are ultra vires. We have joined the multitude of voices calling for a complete retraction of the Memorandum. However, until such time as the Memorandum is withdrawn, we recommend that our clients be prepared to present documentation of an itinerary and the Employer-Employee relationship.


This post is an excerpt of a larger  MU Visa Advisor article authored by Cindy Unkenholt that has been sent to clients of MU. The article includes specific recommendations on improving companies' profiles so that the USCIS finds the Petitioner is a Consultancy and not a "job shop". If you would like a copy of the article please email Cindy Unkenholt or Chris Musillo.

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Comments

  1. Adi's Avatar
    Hi Chris,

    Will this matter for green card sponsorship? or is this exclusive for h1b visa only?

    Thanks
  2. Chris Musillo's Avatar
    @Adi- No. The Neufeld Memo is only aimed at H-1 Petitions.
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