On February 18, 2010, USCIS held a collaboration session with stakeholders to discuss the January 8, 2010 memorandum “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” issued by USCIS Associate Director of Service Center Operations (SCOPS) Donald Neufeld. USCIS says the memorandum was not intended to change policy but rather was intended to provide Service-wide guidance on the requirement that H-1B petitioners establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. The memorandum has, however, been viewed by many, including the American Immigration Lawyers Association (AILA), as significantly altering USCIS’ definition of the employer-employee relationship as it relates to H-1B third-party worksite placements and having the potential to affect other employment-based immigration (please refer to the January 2010 Immigration Update article USCIS Issues Memorandum and Q&A to Clarify the Requirements for Establishing an “Employer- Employee Relationship” in H-1B Petitions for details and clarifications regarding the memorandum). The memorandum also is viewed by AILA and other stakeholders as departing from the longstanding precedence regarding persons who own or have a substantial interest in the petitioning company.
While the memorandum listed examples of prohibited third-party placement activities, USCIS stated that its intention was not to eliminate staffing businesses from the H-1B program and it did not want the memorandum to have unintended consequences. Rather, USCIS only intended for the memorandum to memorialize existing practice. Therefore, USCIS is now requiring that any postmemorandum denial be reviewed by a supervisor and any questions be sent to headquarters. If a request for evidence suggesting a change in policy is received, individuals should advise the agency.