This week, the USCIS released revised FAQ's clarifying portions of the Jan 2010 Neufeld memo. The original Neufeld memo declared that staffing cos. engaging in staff augmentation were not employers as that term was going to be interpreted by the USCIS. After a significant amount of lobbying by various business and legal groups, most notably TechServe Alliance, the USCIS has now modified their position. Specifically, question thirteen notes that there are situations in the consulting / staffing world that would constitute a valid employee – employer relationship. USCIS noted that adjudicators would consider the following factors in reviewing the relationship: “whether the petitioner pays the beneficiary’s salary, whether the petitioner will determine the beneficiary’s location and relocation assignments . . . , and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling.” Question five which specifically states that end client letters are not required is not a change but, has been a part of the policy since August of 2011. We are very pleased to see this guidance from USCIS. We are hopeful that the adjudicators at the Service Centers and Consular officials take note of this guidance and follow it.
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 [...]