How to Maintain Employer-Employee Relationship

(In response to USCIS memo)

There has been a recent increase in deportations of a number of Indian H1B IT workers from Newark and JFK airports. This has sent confusion and shock through H-1B community. H-1B employers, employees and their attorneys alike are astounded by this. Customs and Border Patril has been singling out individuals arriving on H-1B visas even before their primary immigration inspection, proceeded to put these individuals through sham questioning, forced them into making coercive statements, issued expedited removal orders, and sent them back to their home country. What is their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, in other words, at a client site or third party site!

H1B employees working at a client site or a third party site is anything but a new practice, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that this newfound focus on entering immigrants with H1-Bs by CBP inspectors was triggered by an overzealous misinterpretation of a recent Memo issued by the Associate Director of U.S. Citizenship and Immigration Services.

The Neufeld Memo essentially underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

This situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Additionally, H1B employees should be educated on how to answer questions from overbearing government officials.

We at the Law Offices of N.M. Gehi, P.C., always emphasize to H-1B employers and employees alike that strict adherence to the governing regulations and requirements of the H-1B program are necessary.

The focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee.

When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

Ways to meet the “actual” control requirement for H1-B when a third party site is involved include the following:

• Weekly progress reports and an itinerary of work between the employer and employee working at a third party site;
• Proper documentation and reporting of any and all absences, sick leave, vacation, personal leave by the employee to the employer;
• Documentation showing the supervision of the employee with regard to day to day work at all third party sites;
• Documentation of feedback from employer to employee on progress of work and any projects the employee is working on;
• Periodic reviews of the employee showing the regular monitoring of the employee by the employer.

Our law office remains up to date on the requirements for obtaining and maintaining an H1-B visa for both the employee and employer. We have been successful in getting H1-Bs for clients that are employers and employees alike. Please contact The Law Offices of N.M. Gehi, P.C. for more information on successfully meeting the requirements of the H1-B visa. The firm has processed thousands of H-1Bs and hundreds of employment-based immigrant visas. The firm website is www.gehilaw.com. For a free initial personal consultation, please call 718-263-5999.

“The Law Offices of N.M.Gehi has successfully handled hundreds of audits, employer-employee matters and complex immigration matters.”

DISCLAIMER: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

VISA BULLETIN MARCH 2010

Visa Bulletin

Number 18
Volume IX
Washington, D.C.

VISA BULLETIN FOR MARCH 2010

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of immigrant numbers during March. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible under the numerical limitations, for the demand received by February 5th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date which has been announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5. On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPP-INES
1st	22JUN04	22JUN04	22JUN04	01OCT92	01MAR94
2A	01APR06	01APR06	01APR06	01JUL04	01APR06
2B	01FEB02	01FEB02	01FEB02	15JUN92	22AUG98
3rd	22MAY01	22MAY01	22MAY01	08OCT92	01MAR92
4th	15JAN00	15JAN00	15JAN00	08DEC95	01SEP87

*NOTE: For March, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JUL04. 2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JUL04 and earlier than 01APR06. (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIP-PINES
Employ-ment -Based
1st	C	C	C	C	C
2nd	C	08JUL05	01FEB05	C	C
3rd	15DEC02	15DEC02	01JUL01	01JUL02	15DEC02
Other Workers	01JUN01	01JUN01	01JUN01	01JUN01	01JUN01
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th	C	C	C	C	C
Targeted Employ-ment Areas/ Regional Centers	C	C	C	C	C
5th Pilot Programs	C	C	C	C	C

The Department of State has available a recorded message with visa availability information which can be heard at: (area code 202) 663-1541. This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category: Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States. The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This reduction has resulted in the DV-2010 annual limit being reduced to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For March, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	29,600	Except: Egypt: 18,000 Ethiopia: 16,950 Nigeria: 14,350
ASIA	12,000
EUROPE	24,700
NORTH AMERICA (BAHAMAS)	4
OCEANIA	880
SOUTH AMERICA, and the CARIBBEAN	985

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2010 program ends as of September 30, 2010. DV visas may not be issued to DV-2010 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2010principals are only entitled to derivative DV status until September 30, 2010. DV visa availability through the very end of FY-2010 cannot be taken for granted. Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN APRIL

For April, immigrant numbers in the DV category are available to qualified DV-2010 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	29,600	Except: Egypt: 18,000 Ethiopia: 16,950 Nigeria: 14,350
ASIA	12,000
EUROPE	24,700
NORTH AMERICA (BAHAMAS)	4
OCEANIA	880
SOUTH AMERICA, and the CARIBBEAN	985

D. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs offers the monthly “Visa Bulletin” on the INTERNET’S WORLDWIDE WEB. The INTERNET Web address to access the Bulletin is:

http://travel.state.gov

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514 CA/VO: February 5, 2010

USCIS Responds to Recent Earthquake in Haiti

Temporary Protection Status: FAQs

As a result of the recent earthquake in Haiti, the USCIS has implemented the Temporary Protection Status program for Haitian nationals in the United States. Below are some frequently asked questions about this program:
In January of 2010, the Department of Homeland Security Secretary, Janet Napolitano, announced that Haitians may temporarily remain in the United States under the 18-month designation of Temporary Protected Status. As a result of the earthquake, Haitians who live in the United States are unable to return safely to their country. This means Haitian nationals, as well as other individuals without nationality who last habitually resided in Haiti, present in the United States prior to January 12, 2010 are allowed to remain and work in the United States regardless of their current status until it is safe to return to Haiti.

In addition, deportations of Haitians in the United States have been suspended as of January 13, 2010. For more information on Haitians in the U.S. who are eligible to apply for TPS please contact The Law Offices of N.M. Gehi, P.C.

What is Temporary Protected Status?

TPS is granted by the Secretary of Homeland Security to eligible nationals of a certain country (or persons without nationality who last habitually lived in that country) who have experienced temporary negative conditions, such as armed conflict, environmental disaster, or extraordinary and temporary conditions, that prevent nationals of the country from returning safely or for the country to handle their return adequately. TPS allows for beneficiaries to remain in the United States and legally work for a set time period until they can safely return home.

I am a Haitian national; and currently I cannot return to Haiti due to the earthquake and would like to apply for TPS. Am I eligible to apply for TPS?

To qualify, you must:
• Be a national of Haiti, or a person without nationality who last habitually resided in Haiti;
• Have continuously resided in the United States since Jan. 12, 2010.
• Have been continuously physically present in the United States since the date of the Federal Register Notice publication, which will be Jan. 21, 2010.
• Meet certain immigrant admissibility requirements, and other TPS eligibility requirements
• Satisfactorily complete all TPS application procedures as described in the Federal Register notice announcing Haitian TPS

If I am a student or have another immigration status, can I also apply for TPS?

Yes. If you are eligible, you may have TPS in addition to your other status.

Who is a Haitian national?

Under U.S. Immigration law a “national” as “a person owing permanent allegiance to a state.” USCIS also looks to Haitian law to determine who meets the definition of a national. Haiti’s constitution states “any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of their birth.” A person can also acquire Haitian citizenship through naturalization under Haitian law. There are circumstances under which a Haitian can lose his or her citizenship, such as voluntary renunciation of Haitian citizenship. You will be accepted as a Haitian national for TPS purposes if you provide documentary support that satisfactorily demonstrates you meet the criteria for such a national as defined by Haitian law. If you have any questions as to whether you are a Haitian national, please contact The Law Offices of N.M. Gehi, P.C.

When can I submit my initial application for TPS?

The six-month registration period began on Jan. 21, 2010, the date the Federal Register Notice is published, and continues through July 20, 2010. You must file during the registration period and your application must be postmarked on or before the last day of the registration period.

How do I apply for TPS?

You must register for TPS by filing both an Application for Temporary Protected Status, Form I-821, and an Application for Employment Authorization, Form I-765, with any appropriate fees (see table below) or fee waiver requests, and supporting documentation. Please contact The Law Offices of N.M. Gehi, P.C. for more information on filing. I am a national of Haiti and arrived in the United States after Jan. 12, 2010. Am I eligible for TPS? No. To be eligible for benefits, nationals of Haiti (or persons having no nationality who last habitually resided in Haiti) must have continuously resided in the United States since January 12, 2010.

If I resided in the United States before Jan. 12, 2010, but was temporarily out of the country on either Jan. 12, or on Jan. 21, when the TPS designation became effective, or both dates, am I eligible for TPS?

You must demonstrate with supporting documentation that you have both continuously resided in the United States since Jan. 12, 2010, and have been continuously present since Jan. 21, 2010, the effective date of the TPS designation for Haiti. However, a “brief, casual and innocent absence” from the United States will not break continuous residence or presence.

Can I use TPS as a basis for obtaining permanent resident status?

No. TPS is a temporary benefit that does not lead to lawful permanent resident status or confer any other immigration status.

May I apply for another immigration benefit while registered for TPS?

Yes. Registration for TPS does not prevent you from applying for nonimmigrant status, filing for adjustment of status based on an immigrant petition, or applying for any other immigration benefit or protection for which you may be eligible.