Visa Lawyer Blog

After a tough December with H1B RFE’s and the Cap, on January 8th USCIS issued new requirements for H1B cases. An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation, as of April 2010, will be required to establish, through documentary evidence, a valid employer-employee relationship throughout the petition validity period. The sweeping and controversial new guidance will change the way employers prepare, and USCIS adjudicates, most H-1B petitions.

Employer-Employee Relationship

H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with the beneficiary of the petition. The memorandum states that the lack of guidance on this issue has made it difficult for USCIS adjudicators to determine whether such a relationship exists, especially when petitions involve independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

When determining whether an employer-employee relationship exists, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following, with no one factor being decisive:
* Does the petitioner supervise and is such supervision off-site or on-site?
* If the supervision is off-site, how does the petitioner maintain such supervision?
* Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
* Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
* Does the petitioner hire, pay, and have the ability to fire the beneficiary?
* Does the petitioner evaluate the work-product of the beneficiary?
* Does the petitioner claim the beneficiary for tax purposes?
* Does the petitioner provide the beneficiary any type of employee benefits?
* Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
* Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
* Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?
According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. The petitioner must also be able to establish that the right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment term with the petitioner.

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Recently the Congressional Reserch Service issued a new report titled: “The Effects on U.S. Farm Workers of an Agricultural Guest Worker Program.” Linda Levine the author writes:

Guest worker programs are meant to assure employers (e.g., fruit, vegetable, and horticultural specialty growers) of an adequate supply of labor when and where it is needed while not adding permanent residents to the U.S. population. They include mechanisms such as the H-2A program’s labor certification process to avoid adversely affecting the wages and working conditions of comparable U.S. workers. If changes to the H-2A program or creation of a new agricultural guest worker program led growers to employ many more aliens, the effects of the Bracero program might be instructive: although the 1942-1964 Bracero program succeeded in expanding the farm labor supply, studies estimate that it also harmed domestic farm workers through reduced wages and employment. The magnitudes of these adverse effects might differ today depending upon how much the U.S. farm labor and product markets have changed over time, but their direction likely would be the same.

The report further states, Despite increases in H-2A worker certifications issued by the U.S. Department of Labor in recent years, the number of H-2A workers remains quite small compared to the nearly 1 million hired farm and agricultural service workers employed in 2008.5 Thus, even if the labor certification process has not operated as intended—to protect similarly employed U.S. workers—the H-2A program’s low utilization suggests that its overall impact on the domestic farm labor force has been minimal.

DOL announced late last year about the changes to the Prevailing Wage Determination procedures, these changes became effective today. So what cases are affected? As described in the Department’s December 4, 2009 Federal Register Notice, the National Prevailing Wage and Help desk Center (NPWHC) will process Prevailing Wage Determination (PWD) requests for H­1B, H­1B1(Chile/Singapore), H­1C (if reauthorized by Congress), H­2B, E­3 (Australia) programs, and the permanent labor certification program (PERM).

Now employers will need to plan at least 60 days in advance when filing any of the above referenced applications, we anticipate serious delays in the early stages of this program. Especially since only hard copy mail ins are accepted at this time.

Click here for the DOL complete rule.