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Chris Musillo on Nurse and Allied Health Immigration

USCIS Memo on H-1B Staffing Companies

Rating: 2 votes, 5.00 average.

by Chris Musillo





The USCIS has just released a comprehensive Memo aimed specifically at H-1B users who place employees at third-party job sites, such as many IT and healthcare staffing companies. The nineteen page Memo, which is available at the link below, clarifies whether an H-1B Petition will be approved or denied in instances where an employee is expected to work at a third-party worksite.

The key concept in the Memo is whether or not the H-1B employer-petitioner has the "right to control" the Beneficiary's work. The Memo lists eleven factors that will be considered.
The Memo also lists scenarios in which the H-1B will be approved or denied (assuming there are no other deficiencies in the Petition):



H-1B WILL BE APPROVED:
- Traditional employment where the employee occasionally visits off-site clients.
- Long-Term Off-Site Employment where the Beneficiary reports to Petitioner's staff and not to third-party clients' staff.
- Long-Term Off-Site Employment where the Beneficiary using the Petitioner's proprietary software/processes.

H-1B WILL NOT BE APPROVED:
- Self-Employed Beneficiary.
- Independent Contractors.
- "Job-Shop" where the Petitioner places H-1B employee at third-party off-site clients and the Petitioner exercises no control over the Beneficiary's work.

Characteristics of the "job shop" are:
o Petitioner has contracts with many companies in which it supplies staff to these companies.
o These contracts do not list specific positions, but are staffed on an "as-needed" basis.
o Beneficiary is working in a "core position". An example of a "core position" is working on a client's payroll software.
o Beneficiary reports to a manager who is an employee of the third-party company.
o The Beneficiary's work assignments are determined by the third-party company.
o No proprietary information is used.
o The Beneficiary's progress reviews are completed by the third-party company.

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Comments

  1. Peter Parker's Avatar
    Great news!
    THe first step to dismantling the H-1b job killing program.
  2. Sagar's Avatar
    Dear Chris,
    What happening with health care bill? When are they expecting to introduce senate version of CIR? Any idea..
    thanks
  3. Chris Musillo's Avatar
    @ Peter-
    That is certianly the view of some. I'm not so sure that there is the linear relationship that you suggest in a service-based economy, although there likely is some relationship.

    You may find this article that I wrote intertesting. I think that it is even-handed:
    http://www.docstoc.com/docs/7293888/CBAReport_July2006_CTM

    -Chris
  4. Chris Musillo's Avatar
    @ Sagar-

    They will not do anything until the Healthcare bill is wrapped up, which is still not finished.
  5. nagamani's Avatar
    DEAR CHRIS,

    WHY WAIT FOR HEALTHCARE BILL OR CIR. NURSE BILL SHOULD BE INTRODUCED SEPERATELY SO THAT IT CAN BE PASSED EASILY. ATTACHING WITH CIR WILL HAVE LOT OF DISADVANTAGES.
  6. Frustrated with delays's Avatar
    In that case, they should not pass any bill, because Healthcare bill will get stalled, and everybody should go on vacation.
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