Blogs

Due to increasing denials of H-1B cases especially for IT Industry, Small Consulting Companies and "Job Shop", USCIS released a guidance memo dated 1/08/2010.

As per this memo, in support of an H-1B petition an employer must provide the USCIS, amongst the many other essential requirements, documents establishing that an employer-employee relationship exists. Recently on 1/08/10, the USCIS sent a memo to all Service Centers guiding the Officers in what information in a H-1B petition should be reviewed in concluding whether this relationship does in fact exist.

The USCIS is looking to see whether the petitioner has the "right to control" its employee. It means the petitioner employer has to have control over when, where, and how the beneficiary performs the job. To meets this requirement that the petitioner has a right to control the beneficiary "totality of the circumstances" will be considered. The Following factors may be decisive:

The USCIS’s Office of Fraud Detection and National Security (FDNS) recently reviewed the H-1B program. FDNS may conduct unannounced physical site inspections of residences and places of employment and hold interviews.The visits may occur at the principal place of business and/or at the H-1B non immigrant work location as indicated on the 1-29 petition. USCIS may use a variety of ways to verify namely- review public records and information by written correspondence, Internet, facsimile or other electronic transmission, or telephone. Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H1-B petition to the FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H1-B extensions with the same H-1B employer.

DOL (Department of Labor) issued an update on the processing dates on Perm cases. They are currently working on cases filed in December 2008. If your case has been filed more than one year ago and there has not been an audit, your immigration attorney can send an inquiry on your case to DOL.