Traditionally, business immigration law has existed in relative isolation, with issues so narrowly and rigidly constrained that legal professionals focusing on other areas did not have cause to be aware of immigration-related issues. Times are changing, though, for employment lawyers and those specializing in procurement and services contracting.
Over the past several years, the agency charged with adjudicating immigration benefits requests, United States Citizenship & Immigration Services (USCIS), has gradually evolved its review process and has adopted a more searching inquiry of employment visa adjudications. Skyrocketing denial and Request for Evidence (RFE) rates have been widely reported and discussed, but the data does not help understand the reasoning of USCIS adjudicators for those trying to understand these numbers.
The current administration’s Buy American Hire American (BAHA) executive order has placed an added burden on employers to justify their need for a foreign worker and has also placed an added adjudicatory burden on USCIS officers. In the past, USCIS would focus on establishing whether an offered position requires a bachelor’s degree level of education or equivalent experience and whether the sponsored worker is qualified for a given job based on their education and experience. The evidence was often limited to the employer-provided job description, and the education credentials and experience documentation for the sponsored foreign national (depending on the specific visa category).
Today, this evidence is no longer sufficient. Employers are now expected to provide extensive documentation about their financials, client contracts, organization structure, size, and business model. The adjudication process now includes a wide range of business concepts, including the business need for the role, evidence of sufficient work for each sponsored employee for the entire period of requested time, and the right of the sponsoring entity to control the work of the employee during that time.
As a result, immigration now increasingly begins to overlap with areas of law, most notably, contracts, particularly regarding H-1B visa petitions. More specifically, H-1B employers whose business models require placement of workers at end-client sites are increasingly fighting an uphill, and often losing, battle with USCIS when trying to confirm that, as the petitioning US organization, they have the right to control their sponsored foreign nationals.
While the H-1B regulations always required that the petitioning employer demonstrate they are offering a bona fide job opportunity, up until 2010, employers only had to reasonably outline the terms of offered employment. They were not required to submit specific itineraries when their employees would work at multiple sites. Neither did employers have to specify whether the worksites are employer-owned, or whether they are end-client locations. While USCIS had the discretion to seek additional information, it only utilized it when misrepresentation was suspected.
In 2010 USCIS issued a new policy memo, which expressly instructed USCIS officers to confirm the bona fide employer-employee relationship in third-party placement cases under the common law right-to-control test. USCIS began to consistently issue Requests for Evidence, asking petitioning employers to produce copies of their end-client contracts to verify the nature of the working relationship established between the petitioner and their end-client, seeking to weed out potential job shops and staffing agencies.
Providing offer letters, employer manuals, end-client contracts, organizational charts, and performance evaluations became the norm for consulting companies. However, with USCIS officers being asked to conduct what essentially is legal analysis, confusion and misinterpretation of contractual agreements followed soon after the introduction of the 2010 memo.
These misinterpretations frustrate both immigration attorneys trying to protect the right of their clients to hire qualified workers to meet their business needs, and corporate attorneys drafting the contractual agreements USCIS is supposed to review.
For example, contracts can appear outdated, often because a company has had a long-standing relationship with their client, and USICS will challenge them as insufficient due to their dates of execution and based on the premise that USCIS cannot confirm the contract is still valid. This reveals that USCIS does not know how to properly interpret or does not want to give any consideration to term and termination clauses, which attorneys often include to proactively define the scope of an engagement. Some contracts that include a general scope of service statement are deemed insufficient because USCIS demands a more specific description of the work to be done. Provisions allowing the end-client to request and approve specific employees or review their end work-product are also increasingly interpreted as providing the end-client with control of the worker (so that a petition by the vendor cannot be approved), rather than as an end-client’s right to ensure the product or service is up to specifications.
While both business and immigration attorneys have tried to remain proactive about finding supplemental forms of evidence to help USCIS understand the terms of contracts, USCIS is continuing to effectively impede sponsoring employers’ ability to smoothly deliver their contractual obligations. Although USCIS has been reviewing contracts for third-party placements for the past decade, the common misinterpretations above persist, leaving both immigration attorneys and corporate legal counsel struggling to find a way to educate adjudicators and to avoid costly litigation as a solution.
There are potential solutions petitioning employers can consider to help decrease the risk of denial, and in turn, benefit the end-clients who rely on their services. One such solution has been to re-evaluate whether the work in question must be done at the premises of the end-client. USCIS has long-recognized that occasional visits to client sites to ensure the product or service delivered is functioning properly are appropriate, and do not trigger questions with respect to which party is the H-1B worker’s direct employer. Another solution may be for petitioning employers to rent out office space and have a supervisor on-site, thus taking the case out of the third-party placement model. A third solution could be to revise existing contracts and bolster the scope of service sections to clarify the vendor’s rights of control.
Different solutions will work better for various circumstances but addressing and strategizing such changes proactively is of substantial importance. After a decade of misinterpreting third-party consultant contracts, USCIS adjudicators are highly unlikely to start improving any time soon, so the onus remains on the petitioning employers, and their legal counsel, to work together to strategize a solution with their end clients that does not rely on a USCIS officer’s ability to understand a key piece of petition evidence.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 11, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
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