If you are a consulting company and you file H1 petitions, you know that over the past two years, the rules of the process have become more and more difficult.   

 
To date, we have provided USCIS with H1-B  filings anything that we know from our own experience MAY BE required to obtain the approval if these were in fact available to the petitioner. Essentially, we have been providing evidence of work location and documentation of the relationships among petitioner, agency, end client and the beneficiary. The evidence provided has been in the form of letters, work orders, contracts, tax returns, W-2’s, payroll records etc.
 
The Donald Neufeld Memo dated January 8, 2010 which is attached as a PDF is entitled “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements ”. If you read the Memo, you will find examples of relationships that USCIS deems acceptable and others that prove problematic. In addition, you will find examples of evidence that USCIS wants submitted with H-1B filings. Otherwise, the petition will be denied.
 
Essentially, USCIS is looking for evidence of an employer-employee relationship in situations where the consultant is placed at an end client site (either directly or through agencies). In these situations, USCIS will be looking for evidence of “control” by the petitioning employer over the employment relationship.   The consulting company needs to be “managing” the employment relationship and providing evidence of (a) review process well documented (b) time sheets and documentation as to assignment performance at the client site (c) ability to hire and fire and (d) much more. You will find questions set forth in the Neufeld Memo that will assist you with “compliance” for your own company.
 
Each client is different and runs a company in its own way, as it should be. However, it is clear that USCIS is looking for certain evidence to be submitted with each petition, including requests for extensions and amendments, that consulting companies will be unable to ignore.   Consulting companies need to document changes in the employment relationship and sometimes that means—file an amendment.
 
H1-B compliance is essentially required with each filing: document your company’s human resource processes well. Have a handbook that sets forth company procedures and adhere to these across the board. Have organizational charts setting forth internal review processes and make sure key players in the company have responsibilities that are well documented and that are enforced.
 
I look forward to discussing these situations with each client individually and providing counseling as needed.  
Maria L. Santos
maria@lawbas.com
978-692-3107