HLG will be hosting a free teleconference on Thurs. May 14th at 11:00 am eastern to discuss some recent changes in the immigration laws and policies relative to H-1b visas and PERM applications and also to provide updates on several misc. topics impacted by COVID-19. The seminar will specifically focus on the IT and engineering staffing market but, information will be provided that is relevant to all employers that have international workers. Register here.
The Trump Administration has handed down a new policy memorandum targeting international students by changing the definition of unlawful presence to essentially be synonymous with a status violation. The new memo is slated to go into effect on Aug 9, 2018. The penalty for accruing 180 days of unlawful presence is a 3 year bar from the U.S. The application of the memo to actions that occurred prior to Aug 18, 2018 are quite complicated and must be assessed on a case by case basis. However, what is clear, is that any status violations that occur after Aug 9, 2018 will be treated as accruing unlawful presence. For those OPT STEM students working in the staffing industry, it is believed that this new policy change is directed precisely at you to self-enforce the new prohibitions promulgated by a web-site update that all but essentially prohibits OPT STEM students from being employed by staffing firms at 3rd party sites. There is a public comment period that is open until June 11, 2018. Changes to this policy memo based upon public comments are possible prior to Aug 9, 2018. We will update as developments occur.
The USCIS has once again decided to single out the staffing industry, in particular the IT staffing industry and has issued a new policy memorandum designed to make it more difficult for small and medium sized U.S. staffing companies to employ H-1b workers. The new policy specifically notes that it will be more difficult to prove an employer-employee relationship and get an H-1b approved if the 3rd party placement is multi-layered. For many small and medium sized US companies, the way in which they break into the staffing industry is by starting out as sub-contractors. There are 3 take-aways from this memo: 1. We expect the length of H-1b approvals to be limited to the expiration of the existing PO, JO, SOW, etc; 2. The end client must confirm the details of the job description and corroborate that the position is a specialty occupation; and, 3. We expect an increase in denials over the issue of whether a position is a specialty occupation due to the USCIS "single-degree" rule and the inclusion in many requisitions of language such as "Bachelors degree in Computer science or related degree or relevant experience" Using the Neufeld memo from 2010 as our guide, it took over a year for many end users of IT staffing services to be willing to provide end client letters, now a common and routine practice and we expect it to take some time for the end users to be willing to modify the language in the end client letters to satisfy the newly imposed requirements.
Last week,TechServe Alliance representatives met with USCIS Director Mayorkas and discussed the use of the H-1b program by IT staffing and consulting firms and specifically, the negative impact of the Neufeld policy memo. It is hoped that by listening to US stakeholders that the USCIS will implement H-1b policies that are more consistent with job growth and the promotion of entrepreneurship.
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 [...]