• On Jan. 8, 2010, the USCIS issued a guidance memorandum clarifying the H-1B petitioner's requirement to establish an employer-employee relationship to qualify for H-1B specialty occupation classification. H-1B visa parameters do not contemplate self-employment or independent contractor scenarios, but in certain cases, H-1B workers can be placed at third-party worksites. In such situations, it can be difficult to assess whether the requisite employer-employee relationship exists since the worksite is not operated by the petitioner/employer. Under common law principles traditionally followed by the USCIS, an H-1B employer must be able to establish that it has a right to control the manner and means by which the work is accomplished, and the memorandum provides a list of factors that should be considered as part of a totality of circumstances test, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the petitioner's right to hire, pay and fire the beneficiary. The memorandum also provides examples of cases where the test should be met, and documentation the petitioner may submit in order to establish the relationship. Employers who have their H-1B employees work "off-site" should consult counsel for guidance in addressing this issue in H-1B petition filings and to ensure compliance throughout the H-1B validity period.
  • Travelers should be prepared for delays due to increased travel security measures brought on by the attempted terrorist attack on Dec. 25, 2009. DHS has confirmed enhanced security measures at domestic airports as well as new international security procedures mandating enhanced screening of all individuals flying into the U.S. from or through nations that are State Sponsors of Terrorism or other countries of interest, as well as the majority of all passengers on U.S.-bound flights. In a Jan. 7, 2010 press release, DHS Secretary Janet Napolitano announced the following additional security enhancing recommendations to the White House.
  1. Evaluate and modify the criteria used to create terrorist watch lists, including adjusting how names are added to “No-Fly” and “Selectee” lists.
  2. Partner with the Department of Energy to develop new and more effective technologies to deter and disrupt known threats and to anticipate and protect against new ways terrorists could seek to board aircraft.
  3. Accelerate deployment of advanced imaging technology to detect explosives.
  4. Strengthen the presence of Federal Air Marshals to increase security on U.S.-bound flights.
  5. Work with international partners to strengthen international security measures and standards for aviation security.