Ann Ruben
04-22 10:55 AM
You raise a number of issues for which there are no clear or certain answers. My advice would be to request the extension of H-1 status without submitting pay stubs, and in the event of an RFE, respond with evidence of your complaint about your previous employer. If your new employer needs you to start work within three weeks, premium processing would be required, and even then, if there is an RFE, the timing will be tight.
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gc28262
07-30 07:07 AM
Success Story: Showing a Valid Employer-Employee Relationship (http://shusterman.com/newsletterusimmigrationaugust2010.html#5)
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
As reported in a previous newsletter, a January 8, 2010 USCIS memo entitled "Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements" has made it more difficult, and sometimes impossible, for IT consulting firms who hire professionals to work at third-party worksites to obtain H-1B status on their behalf.
The stated purpose of the memo by Donald Neufeld, Associate Director of Service Center Operations, is "to provide guidance, in the context of H-1B petitions, on the requirement that the petitioner establish that an employer- employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period."
The memo puts particular focus on determining if the employer has demonstrated that it has a "sufficient level of control over the employee." See our H-1B Visa Guide for additional information.
We represent many IT consulting companies, some of which place temporary H-1B workers at client-sites as is common in the industry. In March 2010, we helped one of our corporate clients prepare and file an H-1B extension on behalf of a Senior Systems Administrator who had been working for the same employer since June 2009 in H-1B status authorized by USCIS.
Approximately 3 weeks after the H-1B extension was filed, the USCIS issued a 4-page Request for Evidence (RFE) essentially asking for a laundry list of documents, including Tax Returns of both the petitioner and beneficiary, quarterly wage statements, contracts, photographs of the worksite, etc. to demonstrate that a valid employer-employee relationship existed and would continue to exist for the full duration of the requested H-1B extension of stay. The RFE actually asked for evidence that the employer-employee relationship had existed since the original H-1B approval had been issued (some 9 months before the H-1B extension).
Fortunately, we had forewarned our client of the issues raised by the January 2010 memo and the company was able to provide us with much, if not all, of the requested evidence, including copies of contracts it had in place with the company where the employee was assigned. The contract included language that we brought to the Service's attention stating:
"Contractor shall have sole responsibility to recruit, interview, test, select, hire, manage, train, counsel, discipline, review, evaluate, set pay rates(including the classification of Contractor Personnel as exempt or non-exempt), and terminate the persons who provide the Services hereunder."
and
"On-site Contractor Personnel will be required to acknowledge that they are not employees of CLIENT COMPANY to agree to dispute resolution procedures regarding any dispute they may have concerning their employment by Contractor or concerning their employment status."
We were able to further demonstrate the petitioner's supervision of the employee by showing the hierarchal structure of the organization and evidence that the company had control over the day-to-day activities of the employee through regular service and progress reports.
This case shows the importance of preparing in advance for any possible issues as most RFEs issued by USCIS only allow the petitioner 30 days in which to respond. Because we had anticipated the issues raised in the Neufeld memo, we were able to provide sufficient evidence of the employer-employee relationship to satisfy the USCIS's concerns. This resulted in an H-1B approval notice being issued for our client a short time after our response to the RFE was filed.
In this era of increased scrutiny by the USCIS of most types of petitions, we would not suggest any consulting or staffing agency even consider filing an H- 1B petition if it does not have sufficient evidence of the existence of the employer-employee relationship, including signed contracts between the petitioner and the end-client. It is important to note that in many cases similar to this, the USCIS will only approve the H-1B petition for the duration of the contract between the employer and the end-client. Read more of our Immigration Success Stories.
Winner
06-08 11:46 AM
how about contributing to IV? When ppl here dont pay $10 for IV...will they $1 or $2 Million for Saturn....Do you think so????
How about "Leading By Example"? Would you consider becoming a donor?
Anyways, I do see your point..
How about "Leading By Example"? Would you consider becoming a donor?
Anyways, I do see your point..
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r2i2009
09-10 10:54 AM
Guys,
This is election time and no immigration bills will be taken seriously until mid next year. Let us stay calm and cool.
Still have friends from EB2 2002/03 not gotten their GCs...
Patience is the key.
Election time....immigration issue has zero value
This is election time and no immigration bills will be taken seriously until mid next year. Let us stay calm and cool.
Still have friends from EB2 2002/03 not gotten their GCs...
Patience is the key.
Election time....immigration issue has zero value
more...
dhesha
08-20 07:08 PM
Just curious any July 2nd filler , filled at NSC with an approved I-140 and have PD earlier than 1/1/06 still waiting?
yes I am. Dec 2005, NSC, I-140 Approved -- waiting....
yes I am. Dec 2005, NSC, I-140 Approved -- waiting....
martinvisalaw
04-06 12:48 PM
The perm is for EB-2 which requires a Masters Degree (Foreign Degree acceptable). I've a Bachelors from UK which is 3 years and a Masters from UK which is 1 year. During the I-140 process will there be a problem coz of this.
I think that there could be a problem, unfortunately. You only have 4 years of 3rd level education, which may not be equivalent to a US master's degree, in the view of CIS. UK bachelor's degrees can be equated as equivalent to a US bachelor's degree, if you also did A-levels, because A-levels are considered one year of college in the US. Make sure that your company's lawyer is very familiar with case law and regulations regarding educational equivalencies. Your situation is not clear-cut.
I think that there could be a problem, unfortunately. You only have 4 years of 3rd level education, which may not be equivalent to a US master's degree, in the view of CIS. UK bachelor's degrees can be equated as equivalent to a US bachelor's degree, if you also did A-levels, because A-levels are considered one year of college in the US. Make sure that your company's lawyer is very familiar with case law and regulations regarding educational equivalencies. Your situation is not clear-cut.
more...
emmNemm
12-10 06:02 PM
Wow. Leo, you are rude and over-confident. Please refrain from answering question if you do not have the right attitude.
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eb3_nepa
04-03 08:10 PM
Why is it still unaccessible? Are you guys experiencing the same?
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
Works just fine for me
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
Works just fine for me
more...
nchendica
06-27 07:32 PM
Good house keeping. Keep it up.
Hopefully there wont be any answer for you guys. People are waiting in line for years and you guys cut short with sub labor. Good keep it up.
Hopefully there wont be any answer for you guys. People are waiting in line for years and you guys cut short with sub labor. Good keep it up.
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wandmaker
11-27 08:06 AM
ultimate_champ: If your receipt notice's "receipt date" has August 03, 2007 then you can avail AC21 after 180 days from that date. I guess, your attorney is trying to play it safe or playing with you.
more...
pandu_hawaldar
05-10 10:07 AM
applies to me too, as I came in this thread to read this post :D
Thanks. I have fixed the typo.
.
Thanks. I have fixed the typo.
.
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HOPE_GC_SOON
07-19 04:35 PM
Thanks Meridiani.
Is TSC doing Pre-adjudication Now a days ? Any Clue Gurus.. Otherwise, we have only 50% Chances.
Let's keep fingers crossed..
Thanks,
preadjudication is where USCIS processes your case even when visa numbers are not going to be available: meaning ur PD is not current, they know even if all is well they wont be able to approve, but still they go over everything, issue an RFE is something is not ok etc. If all is well, the case goes into a pre-adjudicated stack, and once visa numbers are available, they simply pick up a file from that stack, assign it a visa and mark it approved. This is how lots of people got approvals last year in july VB.
pre-adjudication has three advantages compared to starting to process only when teh PD is current:
- If they wait for PD to be current to pick up a file and start looking at it, there is no way they can process so many cases when the PD does go current, or when dates move significantly towards the end of the year. This is how they processed nearly 60k cases in 2 months last year.
- if PD is current for a short period (1month or 2) and thats when they pick up your case, if you get a NOID you could end up missing the window by the time you respond and they pick up your response.
- its helpful for them because they can weed out cases that are not going to be approved, earlier and they dont end up giving interim benefits to those people.
ur status does not change when your case is pre-adjudicated.
Is TSC doing Pre-adjudication Now a days ? Any Clue Gurus.. Otherwise, we have only 50% Chances.
Let's keep fingers crossed..
Thanks,
preadjudication is where USCIS processes your case even when visa numbers are not going to be available: meaning ur PD is not current, they know even if all is well they wont be able to approve, but still they go over everything, issue an RFE is something is not ok etc. If all is well, the case goes into a pre-adjudicated stack, and once visa numbers are available, they simply pick up a file from that stack, assign it a visa and mark it approved. This is how lots of people got approvals last year in july VB.
pre-adjudication has three advantages compared to starting to process only when teh PD is current:
- If they wait for PD to be current to pick up a file and start looking at it, there is no way they can process so many cases when the PD does go current, or when dates move significantly towards the end of the year. This is how they processed nearly 60k cases in 2 months last year.
- if PD is current for a short period (1month or 2) and thats when they pick up your case, if you get a NOID you could end up missing the window by the time you respond and they pick up your response.
- its helpful for them because they can weed out cases that are not going to be approved, earlier and they dont end up giving interim benefits to those people.
ur status does not change when your case is pre-adjudicated.
more...
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krishnam70
05-05 04:16 PM
I still don't have my GC(based on an Engineering position) but took up a managerial position within the same organization.. IMO, its a risk worth taking.. If I were you, I would take the new position, switch over to EAD and not apply for the H1B extension..
If USCIS issues an RFE asking for 'Continued Employment offer' or Evidence of Employment? or for that matter when he applies for an EAD/AP renewal he needs to support it with a letter of employment from the current employer.
If at any stage USCIS determines the candidate is actually working in a different category that which the LCA was applied for my interpretation is its ground for denial.
I will leave it to the experts to argue the merits or demerits of this
Good luck though
- cheers
kris
If USCIS issues an RFE asking for 'Continued Employment offer' or Evidence of Employment? or for that matter when he applies for an EAD/AP renewal he needs to support it with a letter of employment from the current employer.
If at any stage USCIS determines the candidate is actually working in a different category that which the LCA was applied for my interpretation is its ground for denial.
I will leave it to the experts to argue the merits or demerits of this
Good luck though
- cheers
kris
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eb3retro
01-06 05:39 PM
Has anyone claimed unemployment benefits in EAD in TX state after being laid off? Can you please tell whats the procedure. I do not want to get into the debate of whether UB can be claimed while in AOS state? I just need to know the procedure. Thanks.
more...
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sagittarian
12-18 12:20 PM
Please keep this thread handy... For my wife, we went through hell due to super coordination between, immigration & social security office.
http://immigrationvoice.org/forum/forum6-non-immigrant-visas/22458-h4-to-h1-no-ssn-yet-7-weeks.html
Hi Goel_Ar, thanks for the response. Assuming there is indeed very good co-ordination between USCIS and SSN office, how long does it *normally* take to get the card?
Any ideas, anyone?
http://immigrationvoice.org/forum/forum6-non-immigrant-visas/22458-h4-to-h1-no-ssn-yet-7-weeks.html
Hi Goel_Ar, thanks for the response. Assuming there is indeed very good co-ordination between USCIS and SSN office, how long does it *normally* take to get the card?
Any ideas, anyone?
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theconfused
04-02 10:21 PM
Hey Dontcareanymore,
You are right.
For other folks, here is the summary -
1) Got H1B visa stamp valid from August 2007 till August 2010.
2) Started working from October 2007 and Was laid off in November 2007.
3) Joined a consultant (IT) in December 2007. Got the training but never pursued any job as did not like the IT field.
4) Found another job in my field (chemical engineering), filed for H1B (premium processing). Got approved without change of status in March 2008 (I-797B) .
6) Attorney said that i have an almost brand new H1B visa so don't have to get a new visa but have to bring myself back into status by re-entering into US. Did that in April 2008. Total number of out of status days = 134. Started working for this employer from April till 30 September 2008.
7) Found another job. Changed the job. Got the I-797A (with I-94). Working with them since October 2008. This new petition is valid from 1 October 2008 till 30 September 2011.
8) Came to New Delhi for visa stamping on 25th Feb 2010. Had almost 20 to 30 minutes long interview.
9) First VO asked normal questions such was job duties, salary, last 3 pay stub, W2 form etc.
10) Then VO found out from the form DS 160 that i have checked on 'out of status' checkbox. She asked what happened. I explained it.
11) She went to consult someone else. Came back and gave me back all the documents and asked that someone will call me on another counter.
12) Another lady called me on different counter after 30 minutes. She sounded friendly and gave me a 221 g form (pink). She told me that it will take 6 to 8 weeks to finish the admin processing.
13) 221 g form had questions like resume, thesis, publication, last 5 travels in US etc.
14) I asked the lady if i can go back on my current valid visa and new I-797A. She went to consult with someone else and said that yes i can go back if i want to and the embassy will shoot me an email when they need the passport for visa stamping.
15) With my best judgment, I left India for US on 3rd March 2010. At POE (Chicago), forwarded my passport (work visa valid till August 2010) with the I-797 A (valid till September 2011). CBP officer gave me the I-94 valid till September 2011.
16) On 16th March 2010, got an email from embassy that they need my passport.
17) I asked if they have received the clearance. They sent me back the automated message that they need my passport.
18) Called DOS to know the status. They said that they can only see on their system the information submitted by the embassy and not beyond that. And the latest information embassy submitted was that they need my passport. The also mentioned that they don't have any idea why the embassy needs my passport. And 221 g is not cleared yet.
19) With best of my abilities, made a decision to go back to India and submit the passport to vfs.
20) Came to India on 29th March 2010 (early AM) and submitted the passport on the same day.
21) Passport was sent back to me on 1st April 2010 with the visa stamped.
22) The new Visa expiration date is 29th March 2012 while I-797A expiration date is September 2011. Why is it so i do not know.
23) Checked the status on the New Delhi embassy website for 221g and it still says that the case is pending though i have received the visa stamp. It indicates that embassy folks do not update the case status report for 221 g.
Please feel free to ask any question.
Thanks a lot to all of you reading this...
You are right.
For other folks, here is the summary -
1) Got H1B visa stamp valid from August 2007 till August 2010.
2) Started working from October 2007 and Was laid off in November 2007.
3) Joined a consultant (IT) in December 2007. Got the training but never pursued any job as did not like the IT field.
4) Found another job in my field (chemical engineering), filed for H1B (premium processing). Got approved without change of status in March 2008 (I-797B) .
6) Attorney said that i have an almost brand new H1B visa so don't have to get a new visa but have to bring myself back into status by re-entering into US. Did that in April 2008. Total number of out of status days = 134. Started working for this employer from April till 30 September 2008.
7) Found another job. Changed the job. Got the I-797A (with I-94). Working with them since October 2008. This new petition is valid from 1 October 2008 till 30 September 2011.
8) Came to New Delhi for visa stamping on 25th Feb 2010. Had almost 20 to 30 minutes long interview.
9) First VO asked normal questions such was job duties, salary, last 3 pay stub, W2 form etc.
10) Then VO found out from the form DS 160 that i have checked on 'out of status' checkbox. She asked what happened. I explained it.
11) She went to consult someone else. Came back and gave me back all the documents and asked that someone will call me on another counter.
12) Another lady called me on different counter after 30 minutes. She sounded friendly and gave me a 221 g form (pink). She told me that it will take 6 to 8 weeks to finish the admin processing.
13) 221 g form had questions like resume, thesis, publication, last 5 travels in US etc.
14) I asked the lady if i can go back on my current valid visa and new I-797A. She went to consult with someone else and said that yes i can go back if i want to and the embassy will shoot me an email when they need the passport for visa stamping.
15) With my best judgment, I left India for US on 3rd March 2010. At POE (Chicago), forwarded my passport (work visa valid till August 2010) with the I-797 A (valid till September 2011). CBP officer gave me the I-94 valid till September 2011.
16) On 16th March 2010, got an email from embassy that they need my passport.
17) I asked if they have received the clearance. They sent me back the automated message that they need my passport.
18) Called DOS to know the status. They said that they can only see on their system the information submitted by the embassy and not beyond that. And the latest information embassy submitted was that they need my passport. The also mentioned that they don't have any idea why the embassy needs my passport. And 221 g is not cleared yet.
19) With best of my abilities, made a decision to go back to India and submit the passport to vfs.
20) Came to India on 29th March 2010 (early AM) and submitted the passport on the same day.
21) Passport was sent back to me on 1st April 2010 with the visa stamped.
22) The new Visa expiration date is 29th March 2012 while I-797A expiration date is September 2011. Why is it so i do not know.
23) Checked the status on the New Delhi embassy website for 221g and it still says that the case is pending though i have received the visa stamp. It indicates that embassy folks do not update the case status report for 221 g.
Please feel free to ask any question.
Thanks a lot to all of you reading this...
more...
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LostInGCProcess
11-06 04:13 PM
OK, thank you. Has anyone done this? Going from AOS to H-1B? I mean, getting into H1 status w/o leaving the U.S.?
I cannot give you an example, since I don't know anybody doing that. AFAIK, if the H1 document, does not come with the I-94, then you have to leave the country and enter to get into H1b status. However, if you do get the I-94 stub, you need not travel thru POI.
confirm with an attorney.
I cannot give you an example, since I don't know anybody doing that. AFAIK, if the H1 document, does not come with the I-94, then you have to leave the country and enter to get into H1b status. However, if you do get the I-94 stub, you need not travel thru POI.
confirm with an attorney.
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franklin
07-17 10:28 AM
Welcome to the board folks.
I can't believe our membership numbers either! Please do help to contribute - everything helps!
I can't believe our membership numbers either! Please do help to contribute - everything helps!
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GCBy3000
07-21 03:56 PM
Hi,
Thanks for contributing to our common cause if you have already done. If not, I would like your to contribute to IV. Every member in this forum has different issues and IV is working towards most of the issues.
I got stuck in FBI name check for over 2+ years (24+ months)... run out of
patience or anything :mad: . I now decide to sue them by filing writ of mandamus in court. I'd like to have an experienced attorney do it for me. I'm looking for an attorney who is responsible and responsive, has been successful in filing writ of mandamus for clients to get the name check moving. If you know/use any attorney like this, would you please let me know by emailing me or sending email to prof_risk at hotmail dot com, thanks a lot!
I live in Maryland, I'd like the attorney to be located in great DC area.
I really appreciate your help
Thanks for contributing to our common cause if you have already done. If not, I would like your to contribute to IV. Every member in this forum has different issues and IV is working towards most of the issues.
I got stuck in FBI name check for over 2+ years (24+ months)... run out of
patience or anything :mad: . I now decide to sue them by filing writ of mandamus in court. I'd like to have an experienced attorney do it for me. I'm looking for an attorney who is responsible and responsive, has been successful in filing writ of mandamus for clients to get the name check moving. If you know/use any attorney like this, would you please let me know by emailing me or sending email to prof_risk at hotmail dot com, thanks a lot!
I live in Maryland, I'd like the attorney to be located in great DC area.
I really appreciate your help
garybanz
01-11 11:53 AM
How long is your I-485 pending? Ever thought about suing the USCIS? This is still the country of law.
Rajiv Khanna has gone on record about suing USCIS, he says majority of cases don't even get a hearing. Govt uses some kind of a law originally created for handling terror suspects against most of the cases against USCIS. How ever he says California is an exception
Rajiv Khanna has gone on record about suing USCIS, he says majority of cases don't even get a hearing. Govt uses some kind of a law originally created for handling terror suspects against most of the cases against USCIS. How ever he says California is an exception
anandrajesh
03-30 09:32 PM
No Bro. I told them when i came to US in 2000 the salary was 1/20 or 1/25 of what I can make in US. So US was an attractive option. Now the salaries in India are close to 10 lacs per annum, it turns out to be 1/4 or 1/5 of what i make here. With less taxes, less cost of living and facilities in india good enough i guess i live a happier life in India than here.
SO i was presenting him my point that moving back to India may turn out to be a wonderful decision than getting stuck here. If every highly qualified immigrant take this decision and leave, US will be at loss. I did manage to convince him that losing us is a bad thing for US economy. That is how he managed to portray my story in a good way.
SO i was presenting him my point that moving back to India may turn out to be a wonderful decision than getting stuck here. If every highly qualified immigrant take this decision and leave, US will be at loss. I did manage to convince him that losing us is a bad thing for US economy. That is how he managed to portray my story in a good way.
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