USCIS Memo on H-1B Employment Relationships Harmful

January 26th, 2010

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!