Tag Archive for: Expedited Removal and H-1B Workers

Cyrus Mehta

ONE YEAR AFTER THE NEUFELD MEMO: CAN THE BEAST EVER BE TAMED?

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By Cyrus D. Mehta

It has been one year since the issuance of the memo by Donald Neufeld of the USCIS, http://tiny.cc/z3ZU8 which sought to define the employer-employee relationship, especially when an employer places an H-1B worker at a third party client site. The Neufeld Memo is like a wild beast that can never be tamed, but can be kept content in captivity so long as it is well fed. Employers, especially in the IT consulting business, have been forced to change their business practices to ensure that they can establish control over the H-1B employee who is placed at a client site, and immigration attorneys have also learned to address and satisfy on the criteria in order to establish the employer-employee relationship. But there are instances where the wild beast can still try to escape and go on a rampage, and this has been demonstrated by Myriam Jaidi in her article on www.cyrusmehta.com regarding the recent problems faced by H-1B applicants when they apply for an H-1B visa stamp at a US Consulate during their vacation, http://bit.ly/hW7KwO. She writes, “it is not much of a surprise that the scrutiny for such companies has increased at consular posts as well. Consulates request tax returns, notarized employee lists, State Unemployment wage reports, etc., to verify that the employer exists and has the right to control the beneficiary’s work.”

In January 2009, a few days after the issuance of the Neufeld Memo, it appears that even the CBP got the virus and began questioning H-1B visa entrants arriving in the US, especially at Newark airport, http://bit.ly/iefgsy, and even subjected some of them to expedited removal. Even here, we have not heard of the same kind of summary removals after the incidents in January 2009 and this problems seems to have been contained. We are also pleased to report that CBP in Newark did indeed rescind an expedited removal order, and this individual recently returned back to the US in H-1B status from the same airport that issued the expedited removal just under a year ago. We thank Newark for doing the right thing, and hope that it will exercise its discretion wisely in other cases too, http://bit.ly/fFZ0al

Cyrus Mehta

EXPEDITED REMOVAL OF H-1B WORKERS AT NEWARK AIRPORT

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We have personally heard of H-1B workers from India employed by IT consulting firms being subject to expedited removal orders at Newark airport in New Jersey. The grounds seem to be rather spurious. Some H-1Bs have been removed because they were working at client work sites, and the position of the Customs and Border Protection officer was that the H-1B petition should have been filed by the client and not by the IT consulting company. Another affected H-1B worker reported that the CBP officer did not believe it was legitimate for the IT consulting firm to be making a profit by billing the client for the services of the H-1B employee. While we need to gather more facts, all of this makes no sense. It is legitimate for an employer to assign an H-1B worker to a client so long as it is indicated in the H-1B petition and that the underlying Labor Condition Application also covers the client location. In some cases, short term assignments may not be considered worksites and need not be covered in the LCA. There is no prohibition for an H-1B worker to make a profit through the services of an H-1B worker so long as he or she is being paid the higher of the prevailing or actual wage (the wage paid to similarly situated workers employed by the IT consulting firm). Moreover, the USCIS is pretty tough in its scrutiny of H-1B petitions filed by IT consulting companies before approving them. Also, the consul also further scrutinizes visa applicants before granting an H-1B visa.

Our colleague, Ron Gotcher, also reports similarly on his blog, http://imminfo.com/News/Newsletter/2010-1/newark_airport_beware.html, and notes one ridiculous instance of a CBP official telling an H-1B worker that only US citizens or permanent residents can work for state agencies.

Most H-1B workers report that they are forced to make their statements under threats of being detained. Furthermore, non-immigrants entrants who are subject to secondary inspection at an airport have no right to counsel. It is important for H-1B workers to stay calm and be truthful and not wilt to pressure. If there is a rogue element among CBP officials at Newark, everyone needs to protest and work with the highest echelons at CBP to correct the problem. Those who have been subject to erroneous expedited removal orders can informally work with the CBP to vacate the expedited removal order. Otherwise, such an order bars the individual from entering the US for a period of 5 years, and it is not fair to so harshly penalize an H-1B worker just because CBP at Newark decides that he or she is violating the terms of the visa.