USCIS Guidance on H-1B Visa

March 23, 2010 Advisory

The U.S. Citizenship & Immigration Services (USCIS) recently issued a Guidance Memorandum regarding H-1B visa status. This Memorandum is of particular significance to staffing companies and to those client companies who contract for their services, such as in the IT consulting industry. The Memorandum is intended to provide guidance in the context of H-1B petitions on the requirement that a petitioning employer establish that an employer-employee relationship exists with the foreign worker beneficiary, especially where the employee's work is performed offsite or the petitioning employer is a staffing company providing third party placements.

By way of background, an H-1B visa authorizes a U.S. employer to employ a foreign worker in the United States in a specialty occupation, which is a position that requires, at a minimum, a Bachelor's degree. Initially, an H-1B visa may be granted for a three year period up to a total period of stay of six (6) years via extensions. The petitioning employer must also satisfy the requirement that a valid employer-employee relationship exists between the U.S. petitioning employer and the foreign worker beneficiary. The USCIS issued the recent Memorandum to address what it described as a lack of clear guidance defining what constitutes a valid employer-employee relationship in the context of the H-1B visa program.