Donald Neufeld’s, Associate Director, Service Center (USCIS) Operations, memo of January 8, 2010, providing guidance on the requisite employer-employee relationship for H-1B purposes, is utterly wrongheaded and harmful to our nation’s economy.   It seems that as our economy has crumbled, USCIS (US Citizenship and Immigration Services) and DHS (Department of Homeland Security) have made a special effort to retard the US economy’s growth and restrict innovation by resorting to deleterious, old-fashioned and prejudicial immigration policies.  Neufeld’s memo is particularly harmful in that it will restrict the competitiveness of US companies in the midst of the most challenging global marketplace the US has ever faced. 

In particular, Neufeld states that in order for there to exist a proper employment relationship for H-1B purposes, the employer must maintain control over the beneficiary employee, even at third party sites.  However, companies rely on contracting IT professionals for their projects so as to avoid high costs and flexibility to grow and streamline as necessary.  Why should H-1B employers not be allowed to contract out their IT employees to third party sites at end clients?  So long as the employer is paying the employee the prevailing wage and the employee is working in the profession designated on the H-1B petition, the employer should be able to delegate control over the specific project to the end client.  However, Neufeld’s memo prohibits such delegation of control in the situation that he calls the “Third-Party Placement”/”Job Shop.”

The US’s immigration policies need to be more liberal and expansive, allowing for creativity and innovation in the workforce so that American employers can create jobs and compete more effectively with businesses worldwide.  Why not rid of the esoteric and regulatory-laden H-1B visa, as well as the L-1 and O-1, and have one temporary working visa that allows for professionals and nonprofessionals, intracompany transferees and extraordinary ability aliens and any other assortment of workers to work in the US so long as there is employment for them (either self-employment or through another employer).  Other requirements could be worked out in terms of a prevailing wage and recruitment to protect US workers.  It’s time to think outside the box!

USCIS has announced that it will grant temporary protected status (TPS) to Haitians in the US as of January 12, 2010.  TPS allows individuals from countries facing catastrophes to remain temporarily in the US and also obtain work authorization.  In this case, Haitians will be granted TPS for 18 months.

According to USCIS, “TPS is a temporary immigration status granted to eligible nationals of a certain country (or persons without nationality who last habitually lived in that country) designated by the Secretary of Homeland Security because that country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of the country from returning safely or for the country to handle their return adequately.  TPS beneficiaries are allowed to remain in the United States and can legally work for a set time period.”

USCIS will open the registration period on the date the Federal Register notice is published and will continue to accept applications for 180 days from that date. An application will be considered as being properly filed if it is postmarked on or before the last day of the registration period.  The individual must file the Form I-821 and the Form I-765 (for the work authorization).  There are also filing fees involved:  $50 for the Form I-821 TPS, $340 for the I-765 work authorization and an $80 biometrics fee for those 14 years of age or older.  If not applying for work authorization, then the I-765 and filing fee need not be filed.

The supporting documentation includes two passport-style photos, a Haitian passport or birth certificate and evidence of residing in the US since January 12, 2010, and being physically present in the US since the date of the publication of the Federal Register Notice.

USCIS offers the following guidance for those without a Haitian passport or birth certificate:  “If you do not have a Haitian passport and are unable to obtain your birth certificate from Haiti, you will need to submit secondary evidence.  This secondary evidence can be any other documentation you already have in your possession from Haiti, showing that you are a national or citizen of Haiti.  Secondary evidence can also be in the form of your baptismal certificate from Haiti, sworn affidavits from close family members providing the specific details of the date and place of your birth and how they know this information.  If any document is not in English it must be accompanied by an English translation.  The person translating the document must certify that he or she is competent in English and the foreign language from which the document is translated and that the translation is true and correct to the best of his or her ability, knowledge and belief.

If you are a person with no nationality that last habitually resided in Haiti, you must show that you are stateless.  That is, that you have no nationality at all.  You must submit a statement explaining why you are stateless.  You must also submit any documentation you may have from Haiti showing that you last habitually resided there.  If that documentation is not available, you may submit sworn affidavits from close friends and family members who have direct knowledge of your residence in Haiti. Again, any documents not in English must be accompanied by a certified English translation.”

A TPS applicant may still apply for another immigration status and his or her TPS application will not affect the applicant’s current immigration status.

A TPS applicant may apply for travel permission, advance parole, to depart the US while in TPS status.  However, one should be very careful about traveling outside the US, since prior unlawful status could trigger a 3 or 10-year bar to reentry into the US.

According to USCIS, the following indivudals are ineligible for TPS:

• A person who has been convicted of any felony, or two or more misdemeanors committed in the United States; and
• A person subject to several other criminal and security-related bars to asylum. This would include participating in the persecution of another individual or engaging in or inciting terrorist activity. 

A USCIS memo from Donald Neufeld, Associate Director of Service Center Operations, dated January 8, 2010, sets out guidlines for determining whether an employer/employee relationship exists for H-1B purposes and requires that such relationship continue throughout the course of the requested H-1B validity period.  Emphasis is placed on the control that the employer has over the employee and USCIS provides a list of criteria to determine whether this control and supervision exists.  It also provides examples of relationships and situations that do and do not constitute employer/employee relationships for H-1B purposes as well as a list of documents to file in support of the requisite relationship.

It will be interesting to see if USCIS now starts to require such information and documentation for all H-1B petitions, especially with petitions where the employee is works at a third party site.  Up until now, USCIS has been arbitrary in asking for such evidence.  Hopefully, it will only require such evidence in cases where there is a likelihood that the employee may not be under the control of the employer, such as where the employee works at various sites nationwide.

In Colmenares Carpio v. Holder, Jan. 12, 2010, the 10th Circuit ruled that a K-2 visa holder who timely applies for an adjustment of status under must be under twenty-one when he or she seeks to enter the United States, not when USCIS finally adjudicates his or her subsequent adjustment of status application.

A child under 21-years-old may apply for a K-2 visa as a dependent of his K-1 fiance parent.   Once the child arrives in the US, he or she must file for adjustment of status along with his or her parent within 90 days of entry on the K-2 visa and after the parent marries the US citizen petitioner.  If not, the child is subject to removal from the US.

The issue in the case at bar was whether the K-2 child must be under 21 at the time of entry into the US or at the time  a final decision is made on the Form I-485 application for adjustment of status to legal permanent resident.   The court interpreted the immigration statutes governing K-2 adjustments liberally and found that the K-2 must be under 21 at the time of entry.

What an absolute political turn-around to hear Lou Dobbs, on the Bill O’Reilly Show on January 8, 2010, sound like a kindler, gentler (as he puts it -”wiser”) soul.  If Lou Dobbs can advocate a comprehensive immigration reform that allows for undocumented workers to remain in the US based on practical and humanitarian reasons, then how can CIR not pass?  This is the most heartening news development I have heard for a very long time.  Let’s hope that it breeds some rationality in the hearts of the reactionaries.

I just had an O-1 extraordinary ability petition approved in record time - a little under 2 weeks - without premium processing!  It was great news and a needed counterbalance against recent news that the H-1B cap had been reached for FY 2010. 

Let’s see how quickly next year’s H-1B numbers go - I wager that the cap will not be reached on April 1, 2010.  If the economy is taking that long to heat up and create jobs, and the most recent rate of H-1B usage was approximatly 4,500 per month, then in the next three months the pent-up demand would round out to about 15,000.  Let’s estimate up a bit to 20,000 and there will still probably be visa numbers around for the early Spring. 

The downturn in the economy has brought some wonderful gems, such as relatively quick processing of petitions.  My H-1B practice has seen H-1B petitions approved in as little as two weeks with no premium processing.  Most recently I filed an O-1 petition for an alien of extraordinary ability and it was approved within several weeks without premium processing.  Usually the H-1Bs or O-1s take at least several months. 

With the economy picking up speed, I guess we need to anticipate slower processing times.  It’s too bad that it can’t be a win-win situation in immigration land.

USCIS announced that as of December 21, 2009, it received enough H-1B petitions to reach the fiscal year 2010 cap.  All petitions received on that date will be subject to a computerized random lottery to select enough petitions to meet the cap. 

USCIS will continue to accept H-1B petitions not subject to the cap, such as extensions of H-1B status, changes of employer, concurrent H-1B employment and petitions for cap-exempt institutions.  For all other H-1B petitions, the earliest that they can be filed is April 1, 2010, and the earliest start date is October 1, 2010. 

It will be interesting to see how many H-1B petitions are filed during the first week of April 2010.  If the economy is expected to grow as slowly as they are predicting, then the H-1B cap will most likely not be reached within the first week.  If the economy heats up more quickly, then we will be stuck with the irrational lottery once again.  Now is the time to rid of the cap and let US employers determine how many H-1Bs they need.

In a Q&A dated December 8, 2009, on its website, U.S. Citizenship and Immigration Services (USCIS) announced that it has extended the filing period of H-1B petitions without Labor Condition Applications (LCAs) that have been certified by the U.S. Department of Labor (DOL).  The effective dates are Nov. 5, 2009 through Mar. 9, 2010.  At this time, USCIS is only providing temporary relief to deal with the Department of Labor’s (DOL) problems with its  iCERT System.   

What is most troubling about its guidance is that it has stated that it will not accept H-1B petitions filed without a certified LCA where the DOL denied the original LCA because it could not find the employer’s valid Federal Employer Identification Number (FEIN).  In the case of an FEIN denial, after the employer files its initial LCA, the DOL sends an e-mail to the employer stating that the LCA was denied because DOL could not verify the employer’s FEIN.  Then, the DOL asks the employer to submit evidence that the FEIN is valid.  After it validates the FEIN, which can take one week, the employer must refile the LCA and wait seven more days for a certification.
USCIS is now stating that it will not accept H-1B petitions where the DOL denied the first LCA because of lack of FEIN verification, even when the original LCA was filed more than seven days prior to the filing of the H-1B petition (the guidance states that the LCA must have been filed at least seven days prior to filing the H-1B petition without the certified LCA).  Instead, the employer must wait for FEIN verification, refile the LCA and wait seven more days before filing the H-1B petition. 
This is outrageously unfair in light of the employer’s lack of culpability and the impending attainment of the H-1B cap.  If employers do not file their H-1B petitions soon, their petitions will be rejected and they will have to wait until April 2010 to refile for a start date of October 2010.   USCIS should accept H-1B petitions without a certified LCA where the employer can document that it filed the first LCA more than seven days before the filing of the H-1B petition and that LCA was denied because of the DOL’s faulty iCERT system and inability to verify the employer’s valid FEIN.
USCIS does state that it “will review the totality of the circumstances to determine whether it can exercise discretion and excuse the late filing if the petitioner submits evidence to establish that the reason for the failure to timely file an extension of stay or change of status H-1B petition was due to the erroneous denial of an LCA. “  This does not help petitioners whose H-1B petitions are subject to the H-1B cap.

As of December 4, 2009, USCIS has received approximately 61,100 H-1B petitions subject to the FY 2010 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS states that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap.  

Employers can continue to file H-1B petitions for a start date before October 1, 2010, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer may now file an uncertified LCA with USCIS in support of the H-1B petition and USCIS will send out a request for additional evidence for the certified LCA.  The H-1B petition can be filed no earlier than seven days after the LCA was submitted.  This policy will last until March 4, 2010.  Currently, the DOL is taking seven days to certify an LCA, unless it requests evidence verifying the employer’s information.    DOL has been denying many LCAs based on its inability to verify the employer’s FEIN.  This can delay the certification another two weeks.  USCIS has acted reasonably in waiving the LCA certification as one of the requirements in light of DOL’s unreasonable delays (it has admitted bugs in its system).  However, USCIS should allow the employer to file the H-1B petition as soon as the LCA is filed in light of the looming H-1B cap.