Knock-Out Punch for Shady Desi Consultants?
It is being reported that many H1B visa holders working with consultants are being sent back to their home country from the port of entry. According to Murthy Law Firm
The Murthy Law Firm has received several reports and learned of instances in which H1B employees were sent back home to India after the Christmas / New Year holiday from various airports, particularly Newark, NJ, and JFK in New York, NY.
There are lots of discussions going on in various immigration forums about this and if those are to be believed, those H1B Visa holders who could not produce a valid client letter or convince the officer at port of entry that he/she has a job in hand are asked to leave the country. A perfect recipe to close all those shady software consulting companies, right?
USCIS has issued a memorandum on 8th of January that analyzes the definition of "employer" and "employee" particularly for H1B employees working at third-party client sites. it says that a “employer” and “employee” relationship should exist for a company to sponsor H1B visa. One of the paragraph from the published memorandum (Page 6)
The following scenario wont present a valid employer-employee relationship
The Third Party Placement/"Job Shop"
The petitioner is a computer consulting company. The petitioner has contracts with numerous outside agencies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third party company but are staffed on as need basis. The beneficiary is a computer analyst. The beneficiary has been assigned to work for a third party company's payroll. Once placed at the client company, the beneficiary reports to the manager who works for the third party company. The beneficiary does not report to the petitioner for work assignments, and all control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client company, not the petitioner. [Petitioner Has No Right to Control; No Exercise of Control]
This rule may potentially make applying for even H1B visa by these tainted desi consultants very difficult.
This is how Murthy law firm has interpreted this memorandum in their web site.
Employers whose business model may be viewed by the USCIS as within the third-party placement are likely to face RFEs in their H1B petitions. Such employers need to review the factors set forth in the memo as indicators of control, and anticipate the need to prove control over their employees or modify their practice to incorporate the factors to establish a direct employer-employee relationship. This memo is significant to the IT consulting industry, and could disrupt many other business sectors. Absent this source of workers, the end clients would be forced to change their business models with regard to how they meet their short- and mid-term IT needs. The impact would not be limited to IT consulting companies, but would also be felt by their clients, which include many of the largest
U.S.companies and even the federal government. U.S.
It is a great thing that USCIS started to fix the loopholes in the law that allowed shady consulting companies to mushroom and eat away major junk of H1B visa thus denying a lot of genuine people of H1B visas.