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01-14 08:20 AM
https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz_GgTVzychf14hNgAutiK5LB3-wwgu22P2qIVa3-XSH-cdP96m8HPwY-of9hYEymrSaSUMbXlptGGRcV3_h_ci2f9r0VcUSVTZ3gMo5frbbmaq_mLHuZ4EeupQdUoydavBbiQpuz4XIHD/s200/uscisLogo.gif (https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhz_GgTVzychf14hNgAutiK5LB3-wwgu22P2qIVa3-XSH-cdP96m8HPwY-of9hYEymrSaSUMbXlptGGRcV3_h_ci2f9r0VcUSVTZ3gMo5frbbmaq_mLHuZ4EeupQdUoydavBbiQpuz4XIHD/s1600-h/uscisLogo.gif)
The US Citizenship and Immigration Service has issued a long memorandum (http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf) on what constitutes an "employer-employee" relationship for H-1B purposes. This should be especially interesting to H-1B workers and employers with consulting or contracting arrangements.
US immigration regulations (8 C.F.R. 214.2(h)(4)(ii)) require, among other things, that a H-1B petitioner "Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee"
CIS acknowledges that the lack of guidance defining what constitutes a valid employer-employee relationship has caused problems, especially when employees such as consultants or contractors are placed at 3rd-party sites. In these situations, the petitioner might not be able to show the required control over the employee's work. CIS considers that the "right to control" the employee's work is critical. The memo stresses that the right to control is different to actual control. To analyze the control, CIS looks at:
Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
If the supervision is off-site, how does the petitioner maintain such supervision, i. e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary with any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
Can the petitioner control the manner and means in which the work product of the beneficiary is accomplished?
The CIS Memo describes various different employment relationships, and states whether they meet the regulatory requirements. Those which CIS considers do not comply with regulations include:
Self employment;
Independent contractors;
"Job shops".
The memo describes, in detail, the evidence that can be submitted to prove an employer-employee relationship, especially where the employee will be working off-site.
The memo also notes that petitions must show compliance with 8 C.F.R. 214.2(h)(2)(i)(B) which states:
Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.
The memo notes that to satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must "submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments." Submitting a detailed itinerary for the next 3 years will be very difficult for many employers who place employees out on contracts.
This memo has just been published today, and there will undoubtedly be many more rticles published that analyze the provisions.
https://blogger.googleusercontent.com/tracker/2893395975825897727-2453679137512034994?l=martinvisalaw.blogspot.com
More... (http://martinvisalaw.blogspot.com/2010/01/cis-issues-memo-on-employer-employee.html)
The US Citizenship and Immigration Service has issued a long memorandum (http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf) on what constitutes an "employer-employee" relationship for H-1B purposes. This should be especially interesting to H-1B workers and employers with consulting or contracting arrangements.
US immigration regulations (8 C.F.R. 214.2(h)(4)(ii)) require, among other things, that a H-1B petitioner "Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee"
CIS acknowledges that the lack of guidance defining what constitutes a valid employer-employee relationship has caused problems, especially when employees such as consultants or contractors are placed at 3rd-party sites. In these situations, the petitioner might not be able to show the required control over the employee's work. CIS considers that the "right to control" the employee's work is critical. The memo stresses that the right to control is different to actual control. To analyze the control, CIS looks at:
Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
If the supervision is off-site, how does the petitioner maintain such supervision, i. e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary with any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
Can the petitioner control the manner and means in which the work product of the beneficiary is accomplished?
The CIS Memo describes various different employment relationships, and states whether they meet the regulatory requirements. Those which CIS considers do not comply with regulations include:
Self employment;
Independent contractors;
"Job shops".
The memo describes, in detail, the evidence that can be submitted to prove an employer-employee relationship, especially where the employee will be working off-site.
The memo also notes that petitions must show compliance with 8 C.F.R. 214.2(h)(2)(i)(B) which states:
Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.
The memo notes that to satisfy the requirements of 8 C.F.R. 214.2(h)(2)(i)(B), the petitioner must "submit a complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested. Compliance with 8 C.F.R. 214.2(h)(2)(i)(B) assists USCIS in determining that the petitioner has concrete plans in place for a particular beneficiary, that the beneficiary is performing duties in a specialty occupation, and that the beneficiary is not being "benched" without pay between assignments." Submitting a detailed itinerary for the next 3 years will be very difficult for many employers who place employees out on contracts.
This memo has just been published today, and there will undoubtedly be many more rticles published that analyze the provisions.
https://blogger.googleusercontent.com/tracker/2893395975825897727-2453679137512034994?l=martinvisalaw.blogspot.com
More... (http://martinvisalaw.blogspot.com/2010/01/cis-issues-memo-on-employer-employee.html)
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thomachan72
11-11 12:58 PM
My PD is Dec 2005 (EB2) and I'm on EAD. I dont know when I'll get the GC but hoping that I'll get it in the next year. I already got an RFE so I'm not expecting another one. The question is, if I get laid off now, can I buy a business (say a convenience store or a subway) and run it (while on EAD)? and would it cause any problems now or in the future when applying for citizenship? I know you have to work in same or similar industry, but my industry is hard hit with recession and I don't think I can find a similar job. So how will they enforce this? Or do they even care?
technically speaking the answer would be "absolutely not"; however, you could try your luck. There might not be another RFE for you and you might get greened. I have known people who were waiting for 485 approval and got laid off. They did nothing but wait anxiously till the miracle happened and the GC showed up in the mail. Immediately they applied for unemployment benefit. There was not much time gap (approx 2 weeks) between being laid off and receiving the GC in this case.
technically speaking the answer would be "absolutely not"; however, you could try your luck. There might not be another RFE for you and you might get greened. I have known people who were waiting for 485 approval and got laid off. They did nothing but wait anxiously till the miracle happened and the GC showed up in the mail. Immediately they applied for unemployment benefit. There was not much time gap (approx 2 weeks) between being laid off and receiving the GC in this case.
dealsnet
04-26 11:15 AM
Usually if Primary's GC approved, RFE for dependents is minor.
When my GC is approved, my dependents get an RFE.
It is for Marriage certificate, birth certificate etc.
Lawyer want $250 for each persons to respond the rfe.
I did asked a copy from the lawyer and send the RFE reply. GC approved within 1 week.
USCIS condider each I-485 as seperate petition, not as a full family affair. My lawyer have all the details, but I think she send these documents with my package only. That is why these birth and marriage certificates are missed from my dependents file.
Lawyers make money and penalise us for their omissions also !!!!!!!!!!!!!
But they didn't admit it. But I did outsmart them with the RFE.
After one month legal aid call me for money and documents, I told them, I have GC in my hand. THANK YOU. !!!!!!!!!!
When my GC is approved, my dependents get an RFE.
It is for Marriage certificate, birth certificate etc.
Lawyer want $250 for each persons to respond the rfe.
I did asked a copy from the lawyer and send the RFE reply. GC approved within 1 week.
USCIS condider each I-485 as seperate petition, not as a full family affair. My lawyer have all the details, but I think she send these documents with my package only. That is why these birth and marriage certificates are missed from my dependents file.
Lawyers make money and penalise us for their omissions also !!!!!!!!!!!!!
But they didn't admit it. But I did outsmart them with the RFE.
After one month legal aid call me for money and documents, I told them, I have GC in my hand. THANK YOU. !!!!!!!!!!
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jest_1
08-12 11:04 AM
What about a scenario like this.. If you had some gaps (less than 180 days), but left and re-entered and then filed your I-485. Would it still be an issue or does 245k cover this scenario ?
more...
GCBy3000
07-26 05:35 PM
Can IV send email todya to all TEXAS members if it supports this move since tomorrow is the last day for registration.
Lewwy
10-28 06:34 PM
Wehey - I can do all that (- website layouts) and I havent had classes yet :)
Your car is slightly different.. It has a gradient; where mine was bright purple.
Can I view a few of your sigs? Or a website you have previously made?
Your car is slightly different.. It has a gradient; where mine was bright purple.
Can I view a few of your sigs? Or a website you have previously made?
more...
snddlth
08-18 08:46 PM
You can open a PO Box in your name and update the address with USCIS. I've done that.
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chandrajp
06-19 01:18 PM
The USCIS website says one need to file 6 months in advance for EAD. It may come out to be true now based on the flood of applications received after July 1st this year. I filed for EAD extentions 3 times in last three years and last 2 times I got in less than a month, this year it took close to 3 months. So always apply 6 months in advance as advised in website
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d502194d3e88d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=1847c9ee2f82b010VgnVCM10000045f3d6a1 RCRD
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d502194d3e88d010VgnVCM10000048f3d6a1RCR D&vgnextchannel=1847c9ee2f82b010VgnVCM10000045f3d6a1 RCRD
more...
whitecollarslave
08-12 02:27 PM
My I-485 got approved on Aug 7th 2008 from NSC. As far as i know my name check was pending during approval time.
How do you know that your 485 was approved even if NC was pending? Does your GC - physical card or the approval notice/emails - indicate that your approval is contingent on NC?
How do you know that your 485 was approved even if NC was pending? Does your GC - physical card or the approval notice/emails - indicate that your approval is contingent on NC?
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amitjoey
01-22 06:26 PM
I Salute you, IV Core
more...
Dhundhun
06-26 04:13 AM
...The instructions in I-131 form says, the application will be abondoned if the person leaves the country after filing I-131.
I think that when intent of filing I-131 is to get AP, and when (s)he goes out of country, (s)he can't come back to USA. AP can't be mailed.
But it the following scenario it is possible to go out after filing I-131 (my guess) and return safely:
-- When a person is having vaild H-1B or H4 visa
-- When a person is already having AP and is returning within the validity existing AP.
I think that when intent of filing I-131 is to get AP, and when (s)he goes out of country, (s)he can't come back to USA. AP can't be mailed.
But it the following scenario it is possible to go out after filing I-131 (my guess) and return safely:
-- When a person is having vaild H-1B or H4 visa
-- When a person is already having AP and is returning within the validity existing AP.
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desigirl
12-02 09:38 AM
What are chances of Dream Act?
What are the chances of including our provisions in the bill?
What happens if the bill passes without our provisions?
What happens if the bill fails?
WHAT ARE OUR CHANCES IN 2011?
What are the chances of including our provisions in the bill?
What happens if the bill passes without our provisions?
What happens if the bill fails?
WHAT ARE OUR CHANCES IN 2011?
more...
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krisganta
08-23 07:52 PM
My wife is in the same situation and debating whether to continue the employment with EAD renewal receipt or not. Could you please share which USCIS number did you call and what options did you select so that we can also call and get the clarificatiion from USCIS directly..just to be on safe side!! Thanks!
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pappu
09-24 10:14 AM
My problem with these hearings is that they play soccer with the interests of immigrants. There are pro and anti immigrant views in discussion.
Enforcement is all about closing the borders and deporting immigrants. But why do we not see hearings to discuss and introduce bills that fine the employers and put them in jail if they hire an undocumented? But nobody, not even the anti-immigrant groups are pushing for such a bill. A lot of undocumented problem will be solved if employers cannot hire undocumented. We call immigrants as illegal, but why can't we use the same standard for employers who illegally hire undocumented?
Secondly when they talk about legalization and path to citizenship, there is no country limits for them. But as soon as we talk about removing country limits in front of the same people, we hear talks about diversity etc.
The same people who favor legals in such discussions, become anti-legal when they have a chance to do something for legals. Why a simple bill like recapture not introduced by these same people till now?
Overall Immigration is more about politics, votes than actually solving a problem. If these folks are serious about fixing a problem, a lot could have been done till now. We need to hear more action than just talk.
Enforcement is all about closing the borders and deporting immigrants. But why do we not see hearings to discuss and introduce bills that fine the employers and put them in jail if they hire an undocumented? But nobody, not even the anti-immigrant groups are pushing for such a bill. A lot of undocumented problem will be solved if employers cannot hire undocumented. We call immigrants as illegal, but why can't we use the same standard for employers who illegally hire undocumented?
Secondly when they talk about legalization and path to citizenship, there is no country limits for them. But as soon as we talk about removing country limits in front of the same people, we hear talks about diversity etc.
The same people who favor legals in such discussions, become anti-legal when they have a chance to do something for legals. Why a simple bill like recapture not introduced by these same people till now?
Overall Immigration is more about politics, votes than actually solving a problem. If these folks are serious about fixing a problem, a lot could have been done till now. We need to hear more action than just talk.
more...
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svn
05-10 05:02 PM
So this is why all lawyers recommend to keep your h1 status valid, when you file your 485. Getting into EAD is a risk, which some bold take and survive, others like me who try to play safe....stay on H1 until the 485 is approved.
That would have been my preference as well - unfortunately I did not have a choice since my company had a RIF and I am now looking for work! Any help on what the status is called (other than jobless!) would be appreciated
That would have been my preference as well - unfortunately I did not have a choice since my company had a RIF and I am now looking for work! Any help on what the status is called (other than jobless!) would be appreciated
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Lisap
09-06 02:27 PM
Somewhat the same situation happened to me, and my attorney advised this in order to avoid the filing:
You may call your bank and hold the checks that you sent second time. If INS finds that the check is not 'withdrawable' they will not file your application.
I agree with fatjoe- that is probably the best way. You could always call customer service and see if they have any suggestions? Good luck to you
You may call your bank and hold the checks that you sent second time. If INS finds that the check is not 'withdrawable' they will not file your application.
I agree with fatjoe- that is probably the best way. You could always call customer service and see if they have any suggestions? Good luck to you
more...
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bp333
09-25 12:32 PM
My attorney filed my 485 AOS on July 11 and USCIS received it on July 12 (Texas Service Center).
Per my attorney all of the July applicants received their receipts except mine. I asked her to see if the check has been cashed and she is unable to confirm that. They think that they might have forgot to include a check (nost sure though). If thats the case, assuming my application gets rejected. Will I be able to refile with my PD not being correct.
What are my options. Please help. Thanks.
:mad:
Per my attorney all of the July applicants received their receipts except mine. I asked her to see if the check has been cashed and she is unable to confirm that. They think that they might have forgot to include a check (nost sure though). If thats the case, assuming my application gets rejected. Will I be able to refile with my PD not being correct.
What are my options. Please help. Thanks.
:mad:
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pd052009
10-26 02:53 PM
While keeping the hopes in DREAM act, get a job, start GC process and you are welcome to join our line.
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number30
07-23 12:20 AM
MurthyDotCom : Effect of Travel While in H1B/L-1 Status with Pending I-485 (http://www.murthy.com/news/n_efftrv.html)
MurthyDotCom : Effect of Travel While in H1B/L-1 Status with Pending I-485 (http://www.murthy.com/news/n_efftrv.html)
MurthyDotCom : Effect of Travel While in H1B/L-1 Status with Pending I-485 (http://www.murthy.com/news/n_efftrv.html)
InLineOnLine
03-12 02:53 PM
Hi Meridian,
let me know how to give you green I can do that for you.
let me know how to give you green I can do that for you.
anilsal
12-19 10:14 PM
I think the idea should be to get the callers from IV over zip codes that are dispersed across the country. Plus the calls should be daily from a few of the members. Maybe like 5-10 calls per day till SKIL bill gets cleared?
What do you think?
Sen.Cornyn should get to know that his bill is important (of course the tech industry has made its intentions clear by pushing for it). Now if the members of IV also keep calling amidst the negative calling campaign from the anti-imm group, it would do us a world of GOOD.
What do you think?
Sen.Cornyn should get to know that his bill is important (of course the tech industry has made its intentions clear by pushing for it). Now if the members of IV also keep calling amidst the negative calling campaign from the anti-imm group, it would do us a world of GOOD.
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