USCIS Collaboration Session, February 18, 2010 – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

I’ve attended two Collaboration sessions sponsored by the new U.S. Citizenship & Immigration Services - Office of Public Engagement (OPE) via telephone. The creation of OPE was announced by USCIS head Alejandro Mayorkas’ on September 14, 2009. Although USCIS officials attend them, they seem to be mostly listening sessions, not heavy on content outflow from the USCIS. The agendas for the sessions are very general. They do not list the featured attendees from the USCIS.


Symbolically, the introduction by the main USCIS spokesperson on the substantive topic, Barbara (last name inaudible), was inaudible because of technical difficulties. She seemed to be too far from the microphone for most of her opening remarks.

The Collaboration Session today, February 18, 2010 – Determining Employer-Employee Relationships for Adjudication of H-1B Petitions – yielded few tidbits from the USCIS on the topic of discussion, the January 8, 2010 “Neufeld” Memo “Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements.” The main ones were:

1. The Memo was developed internally over the past year.

2. Its purpose from the USCIS’s point of view was to get more consistency in the requests for evidence (RFEs) issued to petitioners. The USCIS stated that they wanted to “level the playing field” for those seeking H-1B benefits. They sought to strengthen the integrity of the program by making adjudications consistent.

3. The USCIS’s goal with the Memo was also to have more “strategic RFEs,” rather than reckless template RFEs, that ask for all but the kitchen sink. They would like adjudicators to ask only for information that will “impact the overall eligibility.”

4. It is not the USCIS’s intent to extend the Neufeld Memo to L visa petitions. Practitioners voiced concern that the Memo would bleed into the adjudication of other visas, like L visas, that it would cause problems for those who are starting branches of their businesses in the US and wanted to hire themselves under the intra-company transferee program.

5. The USCIS is considering adding “trusted employer concept” to the H-1B program to reduce the stress of H-1B petitioning for some employers who use the program frequently. I assume this might be like the “blanket L” visa program

There were several stakeholders, interested parties, who spoke for and against the H-1B program in general, and many brought up what has already been discussed in the blogosphere:

1.  Many suggested that the Memo was rulemaking and should it have gone through the Administrative Procedure Act (APA).

- There were several calls to withdraw the memo in its entirety, and to go through the APA procedures, calling for comments to draft regulations etc.

- A caller from Immigration Voice found the Memo’s issuance to be contrary to the goal of transparency that the USCIS and its Office of Public Engagement espouse and a “huge shift” in attitude toward third party worksite consultants.

- The USCIS representatives, including Donald Neufeld, Associate Director, Service Center Operations, himself, did not respond to the accusations of non-transparency and improper rulemaking, except to say that the intent of the memo was to offer guidance to adjudicators and stakeholders.

2.  Practitioners voiced their opinion that the Memo was causing adjudicators to focus only on the “control” element of the four or five elements of determining an employer-employee relationship.

3.  Bruce Martin, immigration attorney Greg Siskind and a practitioner from New Haven emphasized the problems with hospital staffing that the memo is causing. Hospitals in some states cannot be the employer of foreign national physicians because of insurance liability. Staffing companies have long been used to structure the temporary work of foreign physicians in US hospitals.

Of the economic based attacks on the Neufeld Memo, the two themes were that (1) it will encourage companies to move jobs offshore because of an inability to hire the skilled labor that they want here in the US – where at least the H-1B employees are paying taxes, renting apartments and helping to create jobs for US workers with their flexible hire contributions; and (2) it discourages entrepreneurship, the engine of growth for the US economy.