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H-1B and Control Issues in Practice

By Annie Banerjee

On January 08, 2010, The CIS unilaterally, and through a memo banned the practice in many industries notably the IT and health care industry of assigning H-1B workers to third party sites. They said that the petitioning employer should "control" the beneficiary, and can only send beneficiaries to an end user client. Yes, its unfair, stupid, bad law, bad lawmaking. My previous blogs deals with this.

But how have these rules been implemented? We are finding that many officers are using that memo to deny cases, even when a consulting company sends the beneficiary to an end user. Government employees, unable to get into complex reasoning, has reduced the memo in practice to:
1. We see a Consulting Company
2. We have to deny (after all our bosses gave us all these beautiful write up for the denial letters based on the memo that we copy and paste to each denial)
3. Find whatever language we can find and say this shows "no control."

We had one case where the Consulting company had a contract with an end user Company. We provided all types of document, including the contract, the statement of work, documents showing payments from the end user company to the consulting company. The officer cited this one line in the contract to state that this end user company was NOT an end user: "Whereas [End user company] is in the business of providing Open Source solutions to its enterprise clients..." The end user Company creates software in house for their clients. Why would a Company create software if nobody buys that software from them?

In our case the individual was an H-1B extension, lived and worked here for 6 years and had filed the labor certification and I-140. Although you can appeal that denial, the appeal does not give him status. So he has to either convert to F-1 status or go back to India. The work of course will suffer.

His comment was, "The CIS is playing with our lives."

For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

Full post as published by US Immigration Matters on March 24, 2010 (boomark / email).