U.S. Citizenship and Immigration Services ("CIS") promulgated a Memorandum on January 8th, 2010 (the "Memo") that significantly impacts H-1B sponsors in the IT consulting arena. The Memo specifies how CIS should determine the existence of the required employer-employee relationship when adjudicating an H-1B petition. The Memo provides guidance concerning the type of evidence that confirms the existence of an employer-employee relationship between an H-1B petitioning employer and the beneficiary when the employee's work is performed off-site ("third party placement").
We believe that employers who have business models that deal with third-party placements are likely to face onerous Requests for Additional Evidence ("RFE"). These employers will need to review the factors enumerated in the Memo concerning "control", and devise a system of control over their employees to establish a direct employer-employee relationship. The impact of the Memo is likely to have ripple-effects beyond the IT consulting field. The fallout is likely to be felt by their clients which include many of the largest U.S. companies and even the U.S. federal government.
The new levels of service provided to H-1B employers are likely to include: (1) public access file preparation; and (2) site visit compliance; and (3) consular processing coaching; and (4) port-of-entry compliance. For more information about the H-1B nonimmigrant petition process or preparing for the H-1B process by April 1st 2010, please contact us at firstname.lastname@example.org.
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