Neufeld memo employer employee relationship philippines

Neufeld Memo: What You Need to Know About Impact on H1B Workers

neufeld memo employer employee relationship philippines

32 USCIS Memorandum, Determining Employer-Employee Relationship for of H1b Petitions, Including Third Party Site Placements, Donald Neufeld, January 8, from any country but India, China and Philippines must wait about 18 months;. The Neufeld Memo insists that there must be an employer-employee (H-1B) relationship at all times throughout the requested period of H-1B. It appeared not only in the American media, but also in Philippines, Mexico, United Kingdom, and Canada. Citizenship and Immigration Services, made public a memo - commonly known as the 'Neufeld Memo'. The memo officially declared what constitutes an H1-B Employer-Employee Relationship while considering the.

Neufeld memo on employer-employee relationship

However, the Third-Party Memo suggests that in addition to contracts and work orders, the petitioner may be able to demonstrate that the beneficiary has an actual work assignment in a specialty occupation by providing a combination of the following or similar types of following evidence: Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.

Copies of detailed statements of work or work orders signed by an authorized official or the ultimate end-client companywhere the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.

A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work.

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The need to submit detailed statements from the end-client company documentation regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous.

Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions.

This would have other implications for the end client under a joint employer liability theory, and it would not be surprising for an end client to be reluctant in providing a detailed statement about the position and its requirements, especially when its relationship with the petitioner is attenuated through layers of vendors.

MeissnerF. The March Supplementary Guidance further clarifies that a petition involving a third-party worksite may be approved if the petitioner can demonstrate that it will retain the right to control the beneficiary. A number of different forms of documentation may be provided to demonstrate that a right to control exists, such as a letter from the end-client, but such a letter is not an actual requirement.

Question 5 of the March Guidance states as follows: You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist.

neufeld memo employer employee relationship philippines

The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

Does the petitioner hire, pay, and have the ability to fire the beneficiary? Does the petitioner evaluate the work-product of the beneficiary, i. Does the petitioner claim the beneficiary for tax purposes?

neufeld memo employer employee relationship philippines

Does the petitioner provide the beneficiary any employee benefits? Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?

Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished? If H-1B employees are working through a consulting company as contractors, they are mainly the most affected.

Neufeld Memo: What You Need to Know About Impact on H1B Workers

They are the ones who will be affected because of this new memo. During the H-1B season, it was hard to find consulting companies who would apply for H-1B visa because they were receiving RFEs during that period. But this time, this memo is targeting current H-1B visa holders working as contractors. New conditions set forth by the memo will make it impossible for consulting companies to sponsor H-1B visas.

The August Visa Bulletin holds out some hope: This provision helps to assure that all available Employment preference numbers may be used.

In recent years, the application of Section a 5 A has occasionally allowed oversubscribed countries such as China-mainland born and India to utilize large quantities of Employment First and Second preference numbers that would have otherwise gone unused. For example, let us assume that 11, Employment Second preference numbers are available in a calendar quarter.

There is heavy Employment Second preference demand by China-mainland born and India applicants; however, each country is oversubscribed and would ordinarily be limited to about of the available numbers due to the prorating provisions of INA Section e.

neufeld memo employer employee relationship philippines

Applicants from other countries that have not yet reached their per-country limit have reported a total demand of 6, numbers. After taking the worldwide demand into account, it is determined that as a result of the China-mainland born and India per-country limits only 8, of the total available Employment Second preference numbers would be used in that quarter. In this instance, the otherwise unused 3, numbers could then be made available to China-mainland born and India regardless of their per- country limits.

Should that occur, the same cut-off date would be applied to each country, since numbers must be provided strictly in priority date order regardless of chargeability.