Personal Message from Michael Hammond

We have just been advised that the USCIS is holding a meeting this Thursday, February 18th, in Washington DC to allow questions and receive input regarding the recent Neufeld Memo. If the staffing model and the use of H-1b workers represents a large portion of your business, I strongly urge you to attend in person. At the very least, I encourage you to attend via phone. I will be attending in person. If you have any questions, please let me know.

Text of the Notice we Received This Afternoon

To: USCIS National Stakeholders
From: U.S. Citizenship & Immigration Services – Office of Public Engagement
Subject: Collaboration Session – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

February 18, 2010 @ 1:00pm EST

Tomich Center, 111 Massachusetts Ave NW

The USCIS Office of Public Engagement invites you to participate in a collaboration session to discuss the implementation of the memo issued on January 8, 2010 which provides guidance on determining if a valid employeremployee relationship exists. A copy of the memorandum is attached along with this invitation.

We are interested in hearing feedback and input on the impact of this guidance and to understand any concerns that stakeholders may have. There are two ways to attend this meeting:

In person – please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov or (202) 272-1213. Be sure to arrive at least 15 minutes early to allow extra time to be processed through security and bring a photo I.D.

Via telephone – call-in information will be provided when you respond. Please provide your full name and the organization you represent to Mary Herrmann, at mary.herrmann@dhs.gov. We hope you will be able to join in this important discussion.

In a Federal Register Notice released today, the Department of State announced a new fee structure for cases to be processed at consulates and embassies abroad.

Presently, DOS processes all Immigrant Visas (family based or employment based) at a fee of $355 per person. The new proposed system will be a 4-tiered fee structure with a lower fee for family based immigrant visas ($330) and a significantly higher fee for employment based immigrant visas ($720). Other rates will apply to self-petitioned cases and humanitarian cases.

In family based cases, the Affidavit of Support review fee is proposed to go from $70 to $88.

The Notice does not include an increase in nonimmigrant visa application fees, which are currently $131 USD.

To read the Notice in its entirety, please visit: http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf

 The American Immigration Lawyers Association (AILA) has a Business Litigation Committee (BLC) and we met this week and the hot topic of discussion was the recently released Neufeld memo. There is a strong belief that the memo was issued in violation of the Administrative Procedures Act.  There is also the belief that the memo violates long-standing precedent and established law.  It is believed that there are numerous industry groups as well as individual companies that may be pursuing litigation on this matter. The BLC is in the process of working with the American Immigration Council to create a special section within its clearinghouse service http://www.legalactioncenter.org/litigation-clearinghouse  specifically dedicated to collecting and posting relevant documents and information on this issue.  This will allow all  interested parties to be kept up to date on efforts being made to address this policy. We are looking for information regarding actual litigation as well as significant meetings, letters, etc. to USCIS officials as well as Congressional members on this topic. We will then organize the relevant documentation and make it available for access by others. If you are interested in participating in this clearinghouse effort, please keep us updated on your efforts. contact mfh@hammondlawfirm.com for additional info.

We have recently heard of accounts from H-1B workers entering from the Newark and Seattle airports encountering additional questioning, and in some cases expedited removal, by the Customs and Border Protection (CBP) officers. It seems most of the cases are occuring out of the Newark aiport and are primarily aimed at Indian H-1B workers employed by IT consulting firms. CBP officers are not only subjecting such workers to a litany of questions (one worker reported being questioned for over an hour) but the CBP officers are also voicing their opinions regarding the issuance of the initial H-1B. One officer is reported to have said that it was not legitimate for an IT consulting firm to be making a profit by billing the client for the services of an H-1B employee; another officer claimed that the H-1B petitioner should have been the client, not the IT consulting company. Further, another officer made the comment that H-1B workers was receiving salaries higher than Americans or taking away jobs from Americans. CBP questioning is so leading and coercive that the H-1B worker has no choice but to agree with the CBP officers. Obviously this line of questioning goes against many of the basic tenets of the immigration regulations. We are working hard to put an end to this type of “rogue” behavior by some CBP officers. If you know of an such instance occurring, please contact your HLG attorney immediately.

Recently, the USCIS, particularly, the California Service Center has imposed requirements on IT staffing companies employing H-1b workers that are not found in any statute or regulations.  The requirement to produce contracts from parties with which the petitioner has no direct relationship is impossible to meet and the Service Center knows it ! That, is in fact their aim, to be as obstructionist as possible. Instead of applying the statutes passed by Congress and the regulations promulgated through the Administrative Procedures Act and subject to notice and comment i.e. a hearing by the public, they have chosen to arbitrarily act in an uniformed and misguided attempt to “protect the helpless Amercian worker” Kudos to the goal but, the execution gets a resounding “abject failure”.  I happened to have a case recently that represents the idiocy of the Califronia service Center policy.  The Petitioner (Co. A) had a contract with Co. B who had a contract with Co. C (the end client). For those of you who are familiar with the staffing industry, such an arrangement is the norm rather than the exception.  Entire cos. are built on such contrcatual relationships. The CSC demanded the contract between Co. B and C, and my client who has no relationship with Co. C could simply not produce the required contract. Alternative proof, including a letter from Co. C verifying the relationsip and the job description was produced but, ignored by the CSC and the case was denied. I, being filled with righteous indignation, advised my client to file an appeal because surely the appeals unit would look at the evidence with a fair and unbiased eye and approve the petition. Unofrtunately, I told my client that the filing fee for an appeal is $585.00, attorney fees were ridculously exorbidant, and it would take 14-18 months for the case to be heard, and I added, in the interim, the employee could not keep working but, would have to leave the US and wait abroad for a decision. (clearly, the lack of a speedy appeal process and interim work authorization is one of the reasons that the CSC can act with such incredulity. There are simply no repurcussions when they flaunt the law and turn a blind eye to facts and evidenec submitted) My client, being a brilliant business person, had another option. He simply convinced the Co. B and C, the end client to move the project overseas to his development office in Secunderabad, India. Two of the three U.S. workers assigned to the project at the end client were offered the opportunity to transfer to India and when they declined, 3 more off-shore positions were created for Indians abroad.  Way to go California Service Center ! In one failed swoop, you were able to keep an H-1b worker from working in the U.S., paying taxes, renting an apt, buying a car, etc. all horirble things, and at the same time, eliminate the work for 2-3 U.S. workers. I’m sure they appreciated you “protecting” them. But, hey look at the bright side, you made 3 Indians in Secunderabad very happy ’cause they now have a new project to work on.