In most cases, guidance memoranda from USCIS to the field are met with praise. These memos are issued in many instances, often when a new law is passed, a court decision forces a reinterpretation of a current procedure, or when there are inconsistencies in a process. In 2010, then Associate Director Donald Neufeld issued a guidance memorandum regarding the placement of H-1B employees at a worksite not owned/operated/associated with the petitioning organization. While this memo has provided some guidance to attorneys and petitioners, the discretion allowed to USCIS adjudicators often relieves the Service of following the often clear directives this memo set out.
Many U.S. Citizen and Permanent Residents are able to “audition” for a position with a major company through a consulting firm. These firms have standing contracts to provide services to major organizations (think IBM, Microsoft, Nationwide, etc.). The consulting firm provides these services through the use of their employee, placed temporarily on-site with the major organization. While solely the employee of the consulting firm, the employee will work with employees/managers/executives of the major organization on a daily basis. Many times, the employee will prove to the major organization that they are an exemplary employee that fits their corporate culture, and be offered a position with the organization. Consulting firms are at a major disadvantage when attempting to fill needed positions due to the overreaching discretion of USCIS regarding third-party placements.
A shock to no one, the Government is often behind the times on many issues. This comes into play when reviewing the situation of the Consulting firm, and the IT field in general. Since the issuance of the Neufeld Memo, USCIS has made it overly burdensome for petitioners to show that an employer-employee relationship exists when the employee is placed off-site. Even when following the guidance provided in the memo, USCIS will often “move the goal post,” stating that the evidence submitted does not meet their standards of proof. Immigration Attorney’s must often be innovative in responding to requests for evidence from USCIS requiring proof of the employer-employee relationship, even when the Neufeld Memo requirements have clearly been provided.
By holding these consulting firms to a higher standard than most petitioners, USCIS is restricting the type of temporary employment that the H-1B was intended to promote, namely, employment where in specialty occupations where qualified U.S. workers are unavailable.
Practitioners and Employers must be fully aware of the increased scrutiny by USCIS when placing their employee’s at a third-party worksite, and ensure that adequate evidence is submitted to assuage the concerns of USCIS in these situations, as site visits and subsequent H-1B revocations are becoming more widespread.