Between February 19, 2010 and February 25, 2010, USCIS announced new filing locations for the following forms:  I-485, I-765, I-360, I-102, and I-824.  The new filing locations went into effect on February 25, 2010.  However, USCIS has indicated that it will forward petitions and applications to the appropriate filing locations until March 29, 2010.  After the transition period, it will return any improperly filed applications and petitions.

USCIS issued a memorandum dated January 8, 2010, which addresses the characteristics “employer-employee” relationship for H-1B purposes.  This memo has sparked an enormous uproar in the immigration community.  Some commentators have opined that USCIS is on witch-hunt, targeting IT consulting firms. 

The memorandum clarifies the requirements for establishing an employer-employee  relationship and offers a number of examples of scenarios which would and would not meet the  requirements.  In adjudicating H-1B petitions, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  The memorandum offered the following example of a scenario which would not constitute an employer-employee relationship:

Third-Party Placement/”Job-Shop”:  The petitioner is a computer consulting company.  The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs.  The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis.  The beneficary has been assigned to work for a third-party company’s payroll.  Once placed at the client company, the beneficiary reports to a manager who works for the third-party company.  The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company.  The petitioner does not control how the beneficiary will control daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.  The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting.  The beneficiary’s progress reviews are completed by the client company, not the employer.

In addition, the memorandum offers examples of evidence which may be submitted to establish the requisite employee-employer relationship such as detailed itineraries for each service/engagement, employment agreements, offer letters, portions of contracts with end clients, work orders, letters from end-clients with detailed descriptions of the beneficiary’s work and conditions of employment, detailed job descriptions, information about the performance review process, and organizational charts.

The requirements set forth in the memorandum also apply to extensions.  Moreover, if USCIS determines that a petitioner failed to meet the conditions of the employer-employee relationship during any period of the initial approval period, it will deny the extension absent special circumstances.

On February 18, 2010, USCIS held a Collaboration Session to address concerns raised over the issuance of the memorandum.  During the session, USCIS emphasized that the memorandum was not generated to target IT companies or to obliterate the consulting/staffing business models.  According to USCIS, the memorandum  was not in response to the recent allegations of rampant fraud in the H-1B community, but rather issued to put an end to inconsistent Requests for Evidence and denials by USCIS.  Since the memorandum was issued, USCIS policy requires supervisory approval for all H-1B denials.

On February 4, 2010, USCIS offered additional guidance regarding H-1B filings by employers which are subject to the Employ American Workers Act (EAWA). The EAWA was enacted to prevent companies that receive funding under TARP or Section 13 of the Federal Reserve Act from displacing U.S. workers. Under EAWA, a company that has received funding is considered an “H-1B dependent employer” and is subject to additional requirements regarding the recruitment and non-displacement of U.S. workers.

The guidance offered the following:
• Companies who received covered funding and have repaid their obligations should answer “no” to Question A.1.d. of the H-1B Data Collection and Filing Fee Exemption Supplement.
• A valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with Question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. employers, USCIS will deny the H-1B petition.
• EAWA applies only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.

On February 1, 2010, USCIS announced that it will issue approximately 500 new I-129 and I-539 approval notices. Errors were found in approval notices that were issued between January 20, 2010 and January 27, 2010.

After reading various comments in response to Computerworld’s article announcing USCIS’ plans to carry out 25,000 on-siter H-1B investigations, I felt compelled to comment myself. I was both deeply suprised and saddened by the hateful and ethnocentric tone in many of the comments. Here is my comment in part):

While the high rate of H-1B fraud is disturbing, the anti-immigrant sentiment generated by the recent ambush on H-1B employers is even more disturbing! Senator Grassely’s comment, “If employers are hiring visa holders without actual jobs lined up, American workers are losing out” is inaccurate. H-1B employers that hire workers without jobs lined up, bench them without pay and collect illegal payments in exchange for sponsorship are not hurting US workers – these employers are hurting the H-1B workers and scaring them into leaving the US. After all, a US worker cannot lose out on a job that doesn’t exist in the first place.

Computerworld has reported that UCSIS’ plans to conduct 25,000 on-site inspections of companies hiring foreign nationals during this fiscal year, which began October 1, 2009. This is close to a 500% increase in inspections over last year.

In an interview with the Houston Chronicle on November 13, 2009, USCIS Director, Alejandro Mayorkas, indicated a fee increase is probably given the agency’s steep drop-off in revenue last year and dismal projections for 2010.

On September 23, 2009, USCIS published I-485 inventory charts which reveal the number of pending I-485 cases by priority date, preference category and country of chargeability. These charts provide useful data on the volume of employment-based I-485 cases. With a better understanding of the supply and demand for employment-based visas, I-485 applicants can more accurately assess where they stand in the “green card line” and better plan for the future. This is the good news.

The bad news can be found in the charts themselves. The charts show that as of August 2009, over 233,000 employment-based I-485 cases were pending with USCIS. Cases chargeable to India account for nearly half of the pending cases – 111,296 cases were chargeable to India.

The EB-3 category for India is particularly depressing. USCIS provides an example which explains that there are 42,796 EB-3 applicants from India priority dates earlier than an EB-3 Indian national with a June 2005 priority date. Moreover, the charts do not reflect the estimated 15% of visas which go to applicants seeking to immigrate from abroad.

USCIS has indicated that intends to publish quarterly inventory reports.

On October 28, 2009, President Obama signed a law extending the E-Verify employment-authorization verification system, the Conrad 30, EB-5 Investor, and Non-Minister Religious Worker programs until September 30, 2012.