By: Shah Peerally Esq.
Since the release January 2010, Neufeld Memo on H1B, many IT consulting firms have reduced their number of applications or stop applying for H1B in general. This article does not cover this memo but is intended to reinforce or demystify the issues related to H1B filing and permanent residence filing through a PERM labor certification.
First of all we have to know what is an IT consulting firm. The ‘IT consulting firm’ is usually what we know as temp agencies or placement companies. In a time of uncertainty, many big companies such as google, Microsoft, Boeing, and so on, find themselves in a dilemma of employment full time employees or temporary workers in order to continue doing business. Good business sense, dictates that having to hire more employees on a full time basis requires more administration to select and maintain these employees. Therefore, many of them choose just to contract the skilled temporary labor from small IT consulting firms. To this end IT consulting firms have become ‘necessary evils’.
Because most people do not understand the dynamic and thinking process of these companies and because some of these IT consulting firms have abused the system, they have forced the USCIS (United States Citizenship and Immigration Services) to apply strict rules on such small companies. This has resulted in a chilling effect of many of the genuine IT consulting firms. In turn, the employees of these firms are also very fearful. are reasons to be fearful, but most of the fears can be addressed in a rational manner. Below are few reasons why they are afraid and what can be done to alleviate the fear:
- 1. Requirement of Control and Dominion by the end clients – it is a fact now that if an IT consulting firm is placing someone in a position, they are required to show that they will maintain control and dominion on the placed employee. But this is a wrong interpretation of the law as per this article. In such a case a lawyer who is experienced and understands the dynamic of the H1B process, can really become the best friend of the IT firm.
- 2. End Client Letters or In House Projects – letters from the company contracting the IT consulting firms are usually known as the ‘End Client’ letter. This letter has become indispensable in most cases in order to obtain an approval either on a new H1B or an H1B transfer. However, many IT consulting firms are making the mistake including both in house projects and mentioning that there is an in house project. Often it creates confusion. But if it is true, you need to carefully explain and show also the project. Note the project has to be a substantial project not just something that can be done by a regular employee but a specialized employee.
- 3. Change of Location – Once you move to a different county or change location there is a requirement to file a new LCA (Labor Condition Application). However, although there are no requirement to do an amendment in the H1B petition, it is recommended in certain cases to file for an amendment. Again the expertise of a good lawyer will make a difference.
- 4. Working on Multiple H1Bs – Although there is a requirement for skilled workers, companies often require employees (or contracted employees) on only a part time basis. As such, you might want to work for different companies. If this is the case, you can file different part-time H1Bs. Our law firm has successfully filed many of these.
- 5. Filing of the PERM Labor Certification – The labor certification know as PERM is the process which most of the consultants end up by obtaining their permanent residence (Green Card) in the United States. IT consulting firms find themselves in the same dilemma in dealing with such petitions. In fact, their biggest fear is the ability to pay the employees but the truth is that there are many ways to prove the ability to pay namely making enough net profit to cover the wages, showing enough current assets, the consulting firm is already paying the prevailing wage, a combination of wages and net profit or a combination of net current assets and wages. There are other options which have been used including the income of the owners of the business. Nonetheless, unless the lawyer working on the case is aware of this issue at the USCIS level (Form I-140 petition), the certification of the PERM might be useless. We have filed hundreds of PERMs successfully and if you want to know about them, call us at 510.742 5887.
- 6. Accepting students on CPT or OPT students – We are seeing more frequently than not that many companies are accepting students on CPT and OPT to work in their organizations. While both are allowed, there are several issues that need to be addressed. For example, the CPT is the Curriculum Training Program, it is not a free work permit. There are conditions which need to be met before they are issued and how they are being used. Companies should not think that CPTs are ‘free work permits’. Also the IT consulting firm should make sure that the school which is providing the CPTs are also compliant with the rules. The company does not want to face a situation where the school was liberally issuing CPTs and acting fraudulently, the company might well end up being an accomplice. As for the OPT, the rules are also still strict and should be applied strictly. Our recommendation is to put your candidates on an H1B as soon as possible. For more information please visit us at www.peerallylaw.com
- 7. Using a B1 in lieu of an H1B – This is a new concept. The B1 business visa has historically been used by businesses to prospects for new clients or businesses in the United States. It has also been used to bring experts to train people in the United States. Lately, the B1 business visa has been extensively used and even abused because of the inability for many companies to obtain an H1B or for a ‘quick fix’. The State Department has actually come to its sense and issued a cable which actually explains how this new B1 will work. Again, it is imperative that the person meet some requirements in order to benefit from the B1 in lieu of the H1B. Feel free to call us at 510 7425887, if you want us to assess if your company can use this visa.
- 8. Relying on non lawyers to prepare the applications – Due to cost many companies have found it easier just to hire non lawyers known as ‘immigration consultants’ to prepare their immigration cases. This is a major mistake because for one such ‘non lawyer’ companies are operating illegally practicing law without a license. Second, many of them are unable to assess the cases from a legal point of view leaving the consultants and their hiring companies in bad situations. Third, whenever they are busted, they tend to bring the companies down with them. Therefore, it is better to hire an experienced lawyer to help rather than a cheap non lawyer who can not only cost you more but can ultimately ruin the company.
- 9. Using Alternatives to H1B – We have mentioned that the B1 might be an alternative but many companies do not realize that they can also file L, O, EB1, and national interest waivers for their candidates. Unfortunately unless someone is aware of the regular process, they will not be able to use or identify the possibilities. At our law firm, we usually analyze all the options available to the candidate and we recommend the best which will serve clients.
In this article, we have tried to cover only 9 common issues which as a law firm we think affect a company especially IT consulting firms. As you see, the immigration process has actually complicated itself over the year and the above is only a few ideas and suggestions. Just relying on this might not be enough to evaluate individual cases. We therefore highly recommend you call us at 510 742 5887 for more information.