Hunton Immigration and Nationality Law Blog : Immigration Lawyer & Attorney : Hunton & Williams Law Firm : Workplace Enforcement, Immigration Visas

U.S. Citizenship and Immigration Services (USCIS) recently issued a memorandum containing guidance for the processing of H-1B petitions involving certain employer-employee relationships, including self-employment, third-party site placements and independent contractors.  Specifically, the memo states that an H-1B employer must establish that it will maintain the "right to control" the "when, where, and how" a sponsored H-1B worker performs the job, thus raising concerns about the viability of previously acceptable employment arrangements.  This memo follows months of increased scrutiny by USCIS of H-1B petitions filed by consulting companies and H-1B employers that are owned by the employee who is being sponsored.

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U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of December 21, 2009, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2010 (10/1/2009 through 9/30/2010).  The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers.  Petitions that were received by USCIS on December 21st are subject to a random selection process and some will ultimately be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available or to develop the best strategy for mitigating the effects of the cap being reached. 

H-1B petitions for Fiscal Year 2011 may be submitted as early as April 1, 2010, for employment beginning on October 1, 2010.

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U.S. Citizenship and Immigration Services announced today that as of October 25, 2009, it had received all of the available 20,000 master's cap petitions, and approximately 52,800 petitions under the regular cap.  Although a total of 65,000 petitions are allowed each fiscal year, this figure includes 6,800 petitions that are reserved under treaties between the United States and Chile and Singapore.  Thus, less than 5,500 regular H-1B petitions are remaining for Fiscal Year 2010.  With more than 6,000 petitions filed during the four week period leading up to October 25th, it seems that the H-1B cap could be reached before November 25, 2009.  In light of new Department of Labor procedures that can result in preliminary steps taking several weeks to complete before an H-1B petition may be submitted, companies must identify workers that require H-1B sponsorship and commence the process as quickly as possible. Please click here for general information about the H-1B cap.

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U.S. Citizenship and Immigration Services (USCIS) has engaged outside contractors to conduct thousands of site visits to petitioners, including companies that have sponsored employees in H-1B, L-1 or O-1 status.  Typically, the site visits are conducted after approval of the petition.  The investigators may arrive unannounced at the work site, or call the company ahead of time to plan a time to visit the company office or facility.  According to information provided by one such investigator, the purpose of the site visit is to verify that the company is a real operating business entity, and that the person sponsored in the petition is actually employed by the company in the manner described in the petition.  Hunton & Williams clients should contact us immediately if your company is the target of such an investigation, so we can coordinate the process and assist with satisfying any legitimate requests by the investigator.

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