USCIS Redefines the H-1B to Exclude Certain Beneficiaries

Wednesday, January 13th, 2010

Today, United States Citizenship and Immigration Services (USCIS) released new guidance to USCIS adjudicators that redefines the H-1B visa category to exclude certain beneficiaries.  The new guidance was released without the ordinary regulatory process that would require notice and comment.  It also contradicts and attempts to overturn previous determinations by the Administrative Appeals Office (AAO).

Specifically, the new guidance re-determines what constitutes an employer-employee relationship for favorable adjudication of H-1B petitions.  The new guidance excludes from eligibility third-party placement companies, self-employed beneficiaries or start-up companies, and independent contractors. 

The guidance does not exclude traditional employment, temporary or occasional off-site employment, and certain types of long-term or permanent off-site employment, and certain long-term placement at third-party worksites.  However, there will be a number of new documentation requested to establish the employer-employee relationship as a result of this guidance and USCIS issuance of Requests for Further Evidence can be expected.  Before approving H-1B nonimmigrant visa petitions, “the director [of USCIS] shall consider all the evidence submitted and such other evidence as he or she may independently require to assist his or her adjudication.  In addition to all other regulatory requirements, including that the petitioner provide an LCA specific to each location where the beneficiary will be working, the petitioner must establish the employer-employee relationship described above.”  Such evidence should provide sufficient detail that the employer and beneficiary are engaged in a valid employer-employee relationship and may include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client.

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