- Yasmin Blackburn, Esq.

Hello and welcome. This podcast concerns the establishment of an employer-employee relationship for an H-1B filed by an IT consulting company. Specifically, the right to control when, where, and how a Beneficiary performs their job. USCIS will refer to a number of factors when deciding the validity of the relationship and the totality of the circumstances will be evaluated for the duration of the employment period sought.

Basically, USCIS wants to make sure that an employer is doing more than just paying a consultant. They want to see that the employer is supervising the work either on or offsite, that the employer provides the tools or the methodology for the work to be completed, that the employer has the power to hire and fire, that the employer provides benefits and pays taxes for the employee, that the employer controls how the work is completed.

Any of these factors by themselves or in connection with the other factors can establish an employer-employee relationship sufficient to allow for an H-1B to be approved. However, each case is unique and must be assessed individually. Please discuss additional requirements with our office. We will be happy to assist you with any part of understanding or completing the H-1B process. In the current environment, an experienced immigration attorney should guide you through the process and help you avoid some of the potential pitfalls that accompany running an IT consulting firm.

Thank you for listening to us and remember you can always find more information about immigration and Kidambi & Associates at www.kidambi.com or by contacting info at kidambi.com.

- Maier Negugogor, Esq.

Hello and welcome to this immigration minute. This pod cast is to provide guidance to IT consulting companies filing H-1B petitions for employees scheduled to work at client sites. The Service requires specific documentation when filing such cases so it is important that you have an experienced immigration attorney handling your case. In addition, a recent memo from the Service suggests the Service is shifting its focus on what’s required for an H-1B filing. An IT consulting company must now clearly establish an employer-employee relationship exists between it and the beneficiary. For more information about this most recent development and what this might mean for your company, please refer to our pod cast titled” Employer Employee Relationship in the H-1B context. We urge you to discuss placements and documentary requirements with our experienced Attorneys. Where a work order is not available from a client, the Service may accept a letter from the client with specific language describing the position, the duration of the project and how you “direct and control” the consultant. Our office can provide you with a sample. Now more than ever it is vital to have a law firm knowledgeable in filing H-1B petitions representing your company. Please contact us for additional information about our services. Thank you.

- Vaman Kidambi, Esq

This week, the USCIS came out with a long awaited memo meant to clarify the employer-employee relationship for H-1B processing. The memo is entitled, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” and issued by Associate Director Donald Neufeld.

The memo is a direct response to a frustrating situation in the IT consulting industry. Last year the industry saw a record number of RFEs and denials issued in third party consulting arrangements. IT consultants were denied H-1B extensions and transfers, where the employer was unable to provide the Service with copies of contracts or letters from the end client. Mid user letters and explanations proved unpersuasive. Late last year, the Vermont Service allowed petitioners to submit end client letters where contracts were unavailable. Now, this new memo appears to suggest that the issue is not about documenting “immediate employment.” It states, “The petitioner must be able to establish that it has the “right to control” over when, where and how the beneficiary performs the job…(Page 3).”

So, what does an IT consulting company do under the circumstances? Well, for one, I suggest reading the memo in its entirety. It is on our website. Also read the accompanying Q&A that is on the site. We have been proactively scheduling meetings with all our clients to discuss the implications of the new memo and what one needs to do to overcome and document an employment relationship exists within the H-1B context. If you have not received a call, email the office at casestatus at kidambi.com to request an appointment. We hope our suggestions and guidance will help you properly document a valid employer-employee relationship. Thank you.

- Vaman Kidambi, Esq

As the economy heads into a recession, clients have been forced to rethink their strategy for H-1B visas for the next fiscal year. Once again, in April of 2009, 65,000 visas become available and employers all over the country will vie for a chance to hire qualified foreign employees. Recently, Forbes.com ran an article on the 10 top recession proof jobs and not surprisingly, software design, network administration and business analysis related jobs found their way into this list. If we are to believe that there is only one way the current economy could go, then these jobs will be in great demand in the New Year. Planning ahead is important and we are always willing and available to discuss your immigration options with you. Hope you have a great holiday season and successful year ahead. Thank you.

- Christina A. Apfel, Esq

Hello and welcome to this immigration minute with Kidambi & Associates. The P visa category is reserved for people who will be coming to the US to perform in athletics. At our office, we routinely process P visas for tennis players. In order to qualify for a P visa, the tennis player must show that he or she is internationally recognized. To prove international recognition, we advise our clients to provide us with the following documentation: an advisory opinion from the USTA stating how the tennis player is internationally recognized and newspaper articles documenting the player’s tennis career while playing for a US college and/or a national team that participated in international tournaments. In addition, tournament rankings are helpful. Finally, letters from coaches, fellow tennis players, and students testifying to your international status are necessary. We look forward to helping you in your pursuit of a P visa.

- Yasmin Blackburn, Esq

Hello and welcome. This podcast concerns three recent Board of Alien Labor Certification (BALCA) decisions that have a great impact on the PERM process. PERM denials may be appealed to BALCA. A few cautions about PERM: the new system is very unforgiving of errors, employer involvement at all levels is key unlike the old system, and good faith recruitment is critical to having a case approved.

In a recent case, [Bistany’s Oriental Rug Dealers, BALCA Case No. 2007-INA-00009], BALCA found 1) A Delay in contacting an applicant, who appears eligible, is unacceptable and grounds for denial 2) Employers must disclose all job related requirements used to disqualify an applicant.

Another important case [Subhashini Software Solutions, BALCA Case No. 2007-PER-00044], found there is no legal requirement for PERM applications filed by mail to bear the official DOL logo. The dissent argued the DOL logo is an important part of the application and without it the application was essentially incomplete.

The last case [Lam Garden Chinese Restaurant, BALCA Case No. 2008-PER-00014] found the one-day deficiency, in a job order placement, caused by the State was excusable by the Certifying Officer and did not materially affect the merits of the filing.

Thank you for listening to us and remember you can always find more information about immigration and Kidambi & Associates on our website.

- Vaman B. Kidambi, Esq

O.K., so we are once again looking at a mad rush to file H-1Bs on April 1st. Technically, the USCIS is supposed to accept petitions for the first two days before they close the CAP for FY 2009. So, you have until the end of the day on the 2nd to file petitions.

In order to properly plan this year, let’s look at what happened last year. On the 2nd of April, the USCIS announced that they had enough cases in the pipeline to count against the CAP of 58,200 visas. Dummy numbers were assigned to all petitions filed and a lottery system picked random petitions that were then counted against the CAP. Let’s now look at what will happen this year…candidates who missed out last year are going to apply again along with the ones that want to make it into this year’s CAP. I anticipate at least 200,000 petitions being filed this year. That leaves you with a 1 in 4 shot at making the CAP.

Timing is everything. We have already started processing petitions and some employers are taking the lead over others. This is your chance to get ahead of the competition. Do not wait until the last minute to finalize plans.

Finally, pick a Law Firm that can handle volume effectively. We have done so much to tweak our ability to handle volume that we can almost assure you that you will not miss the bus if you plan to ride with us. Take a moment to call me directly at 203 416 5300, that number again, 203 416 5300, so we can help you strategize filing your H-1Bs on time this year!