vbkris77
09-15 04:24 PM
with everyone worried abt the economy and health reforms.. Immigration reforms are toast this year.
While we must pursue the overall reforms,
i suggest that we also seek temporary relief seeking lifting of the ban on filing for 485 for the next 2-3 months... this will help most EB3 and EB2 (I/C/) who missed the 2007 window.
What are the chances of such a relief being provided?
Will a mail campaign work?..plz raise your hand if you are interested..;)
Most lawyers think that it needs a law change. So if we are going to work with lawmakers, why not aim high and get recapture?? So in a nutshell, we will need to wait for CIR.
While we must pursue the overall reforms,
i suggest that we also seek temporary relief seeking lifting of the ban on filing for 485 for the next 2-3 months... this will help most EB3 and EB2 (I/C/) who missed the 2007 window.
What are the chances of such a relief being provided?
Will a mail campaign work?..plz raise your hand if you are interested..;)
Most lawyers think that it needs a law change. So if we are going to work with lawmakers, why not aim high and get recapture?? So in a nutshell, we will need to wait for CIR.
wallpaper Stephen Colbert is Captain
a2006
05-29 09:57 AM
It is major contributing factor to Eb2 and eventually EB3 retrogression. And something needs to be done to make sure that so called project managers from these IT firms from India are not able to apply in this category.
I am not sure if EB1 India cap of 3000 visas has been met already. If it was met, then they would have set a priority date for EB1 India too. Assuming that it is not being met, these project managers along with their spouses should be taking only a very small number and that shouldn't contribute much to EB2-3 retrogression numbers. So our real problem is lack of numbers for EB2 and EB3.
I am not sure if EB1 India cap of 3000 visas has been met already. If it was met, then they would have set a priority date for EB1 India too. Assuming that it is not being met, these project managers along with their spouses should be taking only a very small number and that shouldn't contribute much to EB2-3 retrogression numbers. So our real problem is lack of numbers for EB2 and EB3.
mariusp
02-13 02:28 PM
What ever gave you the idea that EB ROW only wait for 3 years? There's this common misconception flying around here that somehow ROW just cruises by and we get GC handed to us on a platter when in fact up until yesterday EB-3 ROW was just as retrogressed as any other category not to mention that labor (pre PERM) and name check delays affected ROW just as much as everyone else. For instance, my brother, who is EB3-ROW with a PD of Dec 2002... and has been in the US since early 2000 and is still waiting in line...so do the math.
We're all in this crap together, some worse than others... so let's stop with this ROW Vs India & China nonsense. Country quotas are unfair and frankly the entire GC process is unfair and unpredictable... We should aim for solutions that solve this issue in a comprehensive way, not by dividing us even further.
Per country quota is what is killing India/China.. and that is the fact.. on an average ROW person waits for 3 years whereas India/China wait for eons.. as WD said if some one wants diversity go apply for a lottery or for better seek asylum... :mad::mad:
We're all in this crap together, some worse than others... so let's stop with this ROW Vs India & China nonsense. Country quotas are unfair and frankly the entire GC process is unfair and unpredictable... We should aim for solutions that solve this issue in a comprehensive way, not by dividing us even further.
Per country quota is what is killing India/China.. and that is the fact.. on an average ROW person waits for 3 years whereas India/China wait for eons.. as WD said if some one wants diversity go apply for a lottery or for better seek asylum... :mad::mad:
2011 Progressive Eruptions
rahulpaper
06-27 01:23 PM
I am in same boat of HR and company Lawyer (with no control over submission date).
God willing� soon we will all receive a receipt number for I485. There are some calculated risks which are unavoidable.
BTW thanks to you and core team for persistently working for EB community.
God willing� soon we will all receive a receipt number for I485. There are some calculated risks which are unavoidable.
BTW thanks to you and core team for persistently working for EB community.
more...
GCwaitforever
02-14 03:01 PM
Is there anybody in the 'YES' voters in Washinton DC (or near by) who could go and talk to Rajiv Khanna? If not, let us close this thread.
krishnam70
07-11 07:36 PM
TN is not a modified H1B. With TN you do not have a dual intent: you cannot apply for a green card straight through TN status -- you would have to adjust your status to H1, L1, or any other immigrant status and only then apply for a green card.
TN is given for two years. Your wife can just as easily file for a TN in her occupation. Yes, you need an employer in the USA to get TN status, but I don't see a big problem with it. I work for a relatively small company (about 90 employees), and we hire people from all over the world. Our recruitment personnel conducts online and phone interviews, and a job offer can be made before the candidate ever visits our state.
With TN you get stamped at the border -- and welcome back to the USA! :)
Another interesting idea about Canada-USA work/immigration popped up today in conversation with my immigration lawyer. If you have a managerial position in a company that has offices in USA and Canada, you can jump on L1 visa. This will let you file in EB-1 category if you want to go for a green card. There are some additional requirements: you need to work as a manager in the company's branch in Canada for at least a year; when you apply for a green card, the company will need to prove that the Canadian office will keep operating after you get your green card and leave Canada. Nevertheless, it's a possibility that is definitely better than EB-3 or EB-2.
Using NEXUS.. doing my research..
TN is given for two years. Your wife can just as easily file for a TN in her occupation. Yes, you need an employer in the USA to get TN status, but I don't see a big problem with it. I work for a relatively small company (about 90 employees), and we hire people from all over the world. Our recruitment personnel conducts online and phone interviews, and a job offer can be made before the candidate ever visits our state.
With TN you get stamped at the border -- and welcome back to the USA! :)
Another interesting idea about Canada-USA work/immigration popped up today in conversation with my immigration lawyer. If you have a managerial position in a company that has offices in USA and Canada, you can jump on L1 visa. This will let you file in EB-1 category if you want to go for a green card. There are some additional requirements: you need to work as a manager in the company's branch in Canada for at least a year; when you apply for a green card, the company will need to prove that the Canadian office will keep operating after you get your green card and leave Canada. Nevertheless, it's a possibility that is definitely better than EB-3 or EB-2.
Using NEXUS.. doing my research..
more...
vamsi_poondla
02-14 12:06 PM
I do not support law suit for two reasons,
1) I do not believe that lawsuit will bring a positive decision that benefits the whole community.
2) I do not know any of those who tells that they support lawsuits, their level of commitment for becoming plaintiffs, commit the $s, time and energy
I dont care if USCIS scrutinizes those plaintiffs applications closely. They can and they should. Those who are in such a good strong GC cases alone can come forward and participate because if it is legal battle, every thing is fair on both parties to use all legal means to weaken other party.
You can stretch a government agency only to certain extent. No one can prove that USCIS intentionally took decisions so that they waste the visas. Just like my client cannot sue me for the bugs I introduced in my code.(in my good developer days). At the most court might ask agency to prove that they improved the process which USCIS can prove easily.
I urge all members to understand the reasons why we should not support lawsuit. It is not a true consumer rights issue. It is a government agency with limited resources, ideas and priorities.
Finally, what is it to the community on the whole - recapture of unused numbers. Then what whoever gets GC will be happy with their life and what about other deserving GC aspirants. As an organization, our objectives are very clear - we are pro-legal immigration, grass-roots organization for GC Reforms. We believe in lobbying. We believe in making the agencies improve the process, work with congress to increase numbers/ remove country caps, believe in the benefits of legal highly skilled immigration. If the idea is to benefit those 20% before 2004/2005 and not the whole community, I think it is selfish.
I believe in IV strength, IV core principles, IV approach and IV leadership maturity. Every scenario is carefully thought, researched and evaluated even before turning down that idea.
Success has many fathers but failure is an orphan. IV is the kind of organization which keeps the failure attempts also transparent and keeps the members in loop. It also introspects what went wrong and changes the course in next step. Admin relief is the first and foremost priority for us. next is increased lobbying with lawmakers.
1) I do not believe that lawsuit will bring a positive decision that benefits the whole community.
2) I do not know any of those who tells that they support lawsuits, their level of commitment for becoming plaintiffs, commit the $s, time and energy
I dont care if USCIS scrutinizes those plaintiffs applications closely. They can and they should. Those who are in such a good strong GC cases alone can come forward and participate because if it is legal battle, every thing is fair on both parties to use all legal means to weaken other party.
You can stretch a government agency only to certain extent. No one can prove that USCIS intentionally took decisions so that they waste the visas. Just like my client cannot sue me for the bugs I introduced in my code.(in my good developer days). At the most court might ask agency to prove that they improved the process which USCIS can prove easily.
I urge all members to understand the reasons why we should not support lawsuit. It is not a true consumer rights issue. It is a government agency with limited resources, ideas and priorities.
Finally, what is it to the community on the whole - recapture of unused numbers. Then what whoever gets GC will be happy with their life and what about other deserving GC aspirants. As an organization, our objectives are very clear - we are pro-legal immigration, grass-roots organization for GC Reforms. We believe in lobbying. We believe in making the agencies improve the process, work with congress to increase numbers/ remove country caps, believe in the benefits of legal highly skilled immigration. If the idea is to benefit those 20% before 2004/2005 and not the whole community, I think it is selfish.
I believe in IV strength, IV core principles, IV approach and IV leadership maturity. Every scenario is carefully thought, researched and evaluated even before turning down that idea.
Success has many fathers but failure is an orphan. IV is the kind of organization which keeps the failure attempts also transparent and keeps the members in loop. It also introspects what went wrong and changes the course in next step. Admin relief is the first and foremost priority for us. next is increased lobbying with lawmakers.
2010 BE PAUL REVERE:
Legal
07-24 07:33 PM
http://www.immigration-information.com/forums/showthread.php?t=5456&page=8
#78 07-07 12:43 PM
guchi472000 guchi472000 is offline
Junior Member Join Date: Mar 2008
Posts: 13
Re: Visa Bulletin answers and other isssues
--------------------------------------------------------------------------------
Hi Ron.
Any predictions for Aug-08 visa bulletine.
Thanks.
guchi472000
View Public Profile
Find all posts by guchi472000
#79 07-07 01:30 PM
Re: Visa Bulletin answers and other isssues
--------------------------------------------------------------------------------
I suspect there won't be much change from the July bulletin.
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Ron Gotcher Ron Gotcher is offline
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Location: Los Angeles, CA, USA
Posts: 6,767
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#78 07-07 12:43 PM
guchi472000 guchi472000 is offline
Junior Member Join Date: Mar 2008
Posts: 13
Re: Visa Bulletin answers and other isssues
--------------------------------------------------------------------------------
Hi Ron.
Any predictions for Aug-08 visa bulletine.
Thanks.
guchi472000
View Public Profile
Find all posts by guchi472000
#79 07-07 01:30 PM
Re: Visa Bulletin answers and other isssues
--------------------------------------------------------------------------------
I suspect there won't be much change from the July bulletin.
__________________
Ron Gotcher Ron Gotcher is offline
Attorney at Law Join Date: Sep 2005
Location: Los Angeles, CA, USA
Posts: 6,767
Blog Entries: 11
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stupendousman11
09-12 05:48 PM
Here's my situation:
- H1B visa in the 6th year
- I140 approved
- I485 applied July 2 '07
- EAD and AP available
I am getting laid off on Sept 30, but will be on salary and benefits continuation (SBC) for 5 more months until Feb end ie. I'll be paid 100% of my base salary on a monthly basis. Assuming that I don't have another job offer by end Feb, my questions are:
1. What is my H1b status Oct 1 onwards? Am I still on H1 until Feb end? Or does my H1 get revoked the day the company intimates USCIS/INS?
2. How long do I have after Sept30 to find and job and retain my H1 status?
3. I have read somewhere that if there is an employment gap on an H1 the H1 transfer may get approved but I'll have to exit the country and get back in again. Is this correct?
4. Since I have an EAD, am I safe? Can I stay unemployed on an EAD?
5. My current EAD expires Oct 24. I had applied for a renewal Aug 6 so don't expect to get it before the Oct 24. Will this gap in EAD cause an issue with regards to my GC process or ability to stay in the country?
Thanks.
- H1B visa in the 6th year
- I140 approved
- I485 applied July 2 '07
- EAD and AP available
I am getting laid off on Sept 30, but will be on salary and benefits continuation (SBC) for 5 more months until Feb end ie. I'll be paid 100% of my base salary on a monthly basis. Assuming that I don't have another job offer by end Feb, my questions are:
1. What is my H1b status Oct 1 onwards? Am I still on H1 until Feb end? Or does my H1 get revoked the day the company intimates USCIS/INS?
2. How long do I have after Sept30 to find and job and retain my H1 status?
3. I have read somewhere that if there is an employment gap on an H1 the H1 transfer may get approved but I'll have to exit the country and get back in again. Is this correct?
4. Since I have an EAD, am I safe? Can I stay unemployed on an EAD?
5. My current EAD expires Oct 24. I had applied for a renewal Aug 6 so don't expect to get it before the Oct 24. Will this gap in EAD cause an issue with regards to my GC process or ability to stay in the country?
Thanks.
hair Paul Revere), and Michael
Subst_labor
03-16 01:24 PM
If the prior experience was related to your field, then I don't see why not. You may want to hurry because if USIS comes with 45-day labor expiration rule soon (which they may), you may not be able to use the prior approved labor.
arent you in conflict with chanduv23's reply? i am stuck between both of the ideas:) not worried about the bill, its not a law yet..
arent you in conflict with chanduv23's reply? i am stuck between both of the ideas:) not worried about the bill, its not a law yet..
more...
kingkong
09-04 02:00 PM
I am from AP. And my father had first hand experience getting ripped off by this dead mans cronies when they threatened and grabbed my fathers small plot, that he had bought way back in 89, on the out-skirts of Hyd. All it took was one single threatening phone call to my father and my father signed the sale deed for the land the very next day, not asking a single penny in return. His family was more precious to him than the bloody piece of land. My father worked as a clerk in a central govt office. He is a simple man and has no clout.
I am sad that YSR is dead. I wish he survived but with 3rd degree burns and limped out his miserable life for the next 100 yrs.
I am from Kerala. not from AP.(studied in Bangalore and have friends from almost every state from India) I AM NOT A REDDY OR RAO.
Some of my friends are from Bihar (CHILDREN OF MP'S, MLA) go home for elections and lead booth capturing. They shared their experience with me.
CASTE POLITICS IS A THE RESON FOR ALL NEGATIVE COMMENTS.
IN KERALA, CASTE POLITICS IS EXISTS (just pick a candidate for a constituency), BUT NOT IN THE RANGE OF OTHER INDIAN STATES. (ESPECIALLY NORTH INDIA)
Let the people from AP, comment about him. If they give him second time, it is clear that majority like him. No doubt about it. If he is not good, why you people campaign against him by blogs for go to India and vote against him ???
I DIDN'T SUPPORT ANY POLITICIANS. But have a sympathy for a dead person and other 5 people in the accident.
This can happen to any one of us at any time. Do not rejoice in Tragedies.
I am sad that YSR is dead. I wish he survived but with 3rd degree burns and limped out his miserable life for the next 100 yrs.
I am from Kerala. not from AP.(studied in Bangalore and have friends from almost every state from India) I AM NOT A REDDY OR RAO.
Some of my friends are from Bihar (CHILDREN OF MP'S, MLA) go home for elections and lead booth capturing. They shared their experience with me.
CASTE POLITICS IS A THE RESON FOR ALL NEGATIVE COMMENTS.
IN KERALA, CASTE POLITICS IS EXISTS (just pick a candidate for a constituency), BUT NOT IN THE RANGE OF OTHER INDIAN STATES. (ESPECIALLY NORTH INDIA)
Let the people from AP, comment about him. If they give him second time, it is clear that majority like him. No doubt about it. If he is not good, why you people campaign against him by blogs for go to India and vote against him ???
I DIDN'T SUPPORT ANY POLITICIANS. But have a sympathy for a dead person and other 5 people in the accident.
This can happen to any one of us at any time. Do not rejoice in Tragedies.
hot Palin Fans Trying to Edit Wikipedia Paul Revere Page
greensignal
09-23 02:43 PM
can somebody PM me the message and email addresses to send.
Thank You!
Thank You!
more...
house Stephen Colbert visits PRIDE
agiridhar
04-29 01:20 AM
Indeed good for the community.
wouldn't it be even better when investigations are carried out on the substitued cases and action be taken on employers and their law firms ?
Wouldn't it be better to bring a law to prohibit employer's taking money from the employees to file h1's and gc's ?
Not sure what kind of a law could police/monitor an employer taking cash from the employee ?
Any thots ?
wouldn't it be even better when investigations are carried out on the substitued cases and action be taken on employers and their law firms ?
Wouldn't it be better to bring a law to prohibit employer's taking money from the employees to file h1's and gc's ?
Not sure what kind of a law could police/monitor an employer taking cash from the employee ?
Any thots ?
tattoo Palin Derails Paul Revere
![stephen colbert paul revere. “[Paul Revere] warned the](http://timeswampland.files.wordpress.com/2011/06/palin.jpg%3Fw%3D606%26h%3D394%26crop%3D1 "“[Paul Revere] warned the")
Rb_newsletter
01-21 06:15 PM
I got the below email from multiple friends. I don't know what is the source, who wrote this analysis because there is no links. I did NOT mean to spread the fear. Just sharing the contents unaltered.
------------------------------------------------------------------------------------------
However, this is how many could read RECENT (Jan 8, 2010) actions / announcement by USCIS towards Consulting companies, which engages or merely places their employees at the client sites for various projects.
� No new H1B application will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum � for 3rd Party Consulting company.
� No new H1B extension/stamping will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum � for 3rd Party Consulting company.
� If an employee has H1B approved or extension approved, and if he/she comes back to US from a vacation or from an emergency, he/she would be deported back to his/her home country from the Port of Entry (PoE) � for 3rd Party Consulting company.
Why?
Because of 2 recent events:
1) USCIS gave new memorandum (which is now guidelines for USCIS professionals working on the H1B petitions/extensions) on Jan 08th, 2010. (Attached the PDF file for the memorandum).
2) Recently (Jan 2010) several H1B Employees were sent back (in some forum, its mentioned � all of them) to their home country from Newark, NJ and JFK, NY Port of Entry � these were the H1B employees, who went to spend Christmas/New Year vacation to their home countries.
What does the memorandum mention, specifically, about 3rd Party Consulting companies?
Link to the memorandum (PDF attached) � http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf
Employer-Employee Relationship:
As per the memorandum, some previous H1B Law defines, the definition of an �US Employer�. Somewhere in that definition (Page 2 of memo), it mentions the word �Employer-Employee relationship�. Till now, it seems that there was no clear guidance on what kind of relationship was considered having Employer-Employee relationship. So, it was being, probably, interpreted independently or ambiguously. Now, on Jan 8th, 2010, USCIS has published this memorandum for TRAINING USCIS OFFICIALS about understanding, Employer-Employee relationship. The memorandum seems to have been prepared with a clear understanding about it, along with the specific EXAMPLES.
Memorandum has given few specific examples, which would QUALIFY for having Employer-Employee relationship, on Page 4-5 of the Memo � including the nature of the job/business. On Page 5-6, memorandum gives few specific examples, which would NOT QUALIFY for having Employer-Employee relationship. Third Party Placement / �Job-Shop� (better version of �Body-shop�, probably) is NOT QUALIFIED for meeting Employer-Employee Relationships � meaning, 3rd Party placement (which most of the small consulting companies do) doesn�t meet H1B requirement, as defined by the law � meaning for this job, the new H1B or Extension or Stamping petitions CANNOT be approved!! Period !!
This is how memorandum has identified 3rd Party Placements and in Bold letters, why it disqualifies for the H1B petitions (comments are in Red):
�The petitioner is a computer consulting company (which is what all small consulting do). The petitioner has contract with numerous outside companies in which it supplies these companies with employee to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis (this is nothing but, Service Agreement between the petitioner and the mid-vendor!). The beneficiary is a computer analyst (which is what many small consulting company�s employee are). The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company�s payroll (this nothing but, Mid-Vendor�s or so-called Prime-Vendor�s or Consulting Partner�s Revenue). Once placed at the client company, the beneficiary reports to a manager who works for the third-party company (as it happens, when Consulting partner hires employee as a contractor). The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company (petitioner just runs pay-rolls!). The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments (petitioner just runs pay-rolls!). The beneficiary�s end-product, the payroll (payroll of mid-vendor/prime vendor/consulting partner), is not in any way related to the petitioner�s line of business, which is computer consulting. The beneficiary�s progress reviews are completed by the client company, not the petitioner (petitioner just runs pay-rolls!). [Petitioner Has No Right to Control; No Exercise of Control].�
Right to Control:
Supreme Court has stated the definition of Employer-Employee Relationship (Page 3 of Memo), and there it was mentioned to have �Right to Control� over the work of the employee by the employer. From the entire memo, it sounds that Right control is well-established, ONLY WHEN, at least one supervisor from the petitioner�s company works with the beneficiary at the end-client site, and supervises beneficiary�s day-to-day work. So, big Consulting companies such as Wipro, Infosys, Accenture, Deloitte etc. will be good, as they would meet �Right to Control� and that way, they will satisfy H1B requirement by law, and their petitions for similar 3rd party consulting work, will be APPROVED, but not in case of, small consulting companies!! This is because, big consulting companies such as Accenture � have their entire or partial team � along with managers etc. � working at the same client site, where the beneficiary would be working, so they could supervise their work and so exercise control over their work etc., but that cannot be the case with the small consulting � because, their actual business has been, so far, to place employees and run pay-roll � not to get the client projects!
Why one could think that there are slim chances for this memorandum to get reversed in favor of small consulting companies?
This memorandum took care of big consulting companies such as Wipro, Infosys, Cognizant, Accenture etc. � meaning, these companies and their employees are NOT impacted. They can travel freely to-and-fro their home country etc. Since, big companies are not impacted, there will not be any big lobbying or oppositions to this memorandum, per say!! There don�t seem to be a platform for small consulting companies to gather and lobby, plus most the small consulting may not get involved, with fear of exposing themselves more to other issues!! So, it might be east to assume that this memorandum is permanent and not temporary. The recent deportation also indicates that the changes like this memorandum is for serious, not just the warning!
How this memorandum relates to the recent deportation events from NY and NJ airports?
There seems to be an anticipated link between these 2 events � Memorandum and recent Deportations � kind of an indication about the current level of government scrutiny and seriousness of the H1B program. Hence, there have been advices by others that � each employer and employee should operate by strictly following the H1B program requirements.
Link to Murthy.com front page posting about this � MurthyDotCom : NewsFlash! Note to H1Bs Traveling to U.S., Working for Consulting Companies (http://www.murthy.com/nflash/nf_h1conc.html)
What one could predict as happening sooner (trend)?
� Since, it seems big consulting companies (having their own consulting projects)/full-time end-clients and their beneficiaries are not impacted with these changes � there could be trend � employee moving from small companies to big companies for a better shelter for full-time positions � especially, when small consulting company�s immediate preventions / actions to this memo cannot ensure safety.
� Big consulting companies could buy small consulting companies or small consulting companies could sell their companies to big consulting companies (having their own consulting projects), to save their employee�s future/transition etc.
Good Luck my Friends....!!
------------------------------------------------------------------------------------------
However, this is how many could read RECENT (Jan 8, 2010) actions / announcement by USCIS towards Consulting companies, which engages or merely places their employees at the client sites for various projects.
� No new H1B application will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum � for 3rd Party Consulting company.
� No new H1B extension/stamping will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum � for 3rd Party Consulting company.
� If an employee has H1B approved or extension approved, and if he/she comes back to US from a vacation or from an emergency, he/she would be deported back to his/her home country from the Port of Entry (PoE) � for 3rd Party Consulting company.
Why?
Because of 2 recent events:
1) USCIS gave new memorandum (which is now guidelines for USCIS professionals working on the H1B petitions/extensions) on Jan 08th, 2010. (Attached the PDF file for the memorandum).
2) Recently (Jan 2010) several H1B Employees were sent back (in some forum, its mentioned � all of them) to their home country from Newark, NJ and JFK, NY Port of Entry � these were the H1B employees, who went to spend Christmas/New Year vacation to their home countries.
What does the memorandum mention, specifically, about 3rd Party Consulting companies?
Link to the memorandum (PDF attached) � http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf
Employer-Employee Relationship:
As per the memorandum, some previous H1B Law defines, the definition of an �US Employer�. Somewhere in that definition (Page 2 of memo), it mentions the word �Employer-Employee relationship�. Till now, it seems that there was no clear guidance on what kind of relationship was considered having Employer-Employee relationship. So, it was being, probably, interpreted independently or ambiguously. Now, on Jan 8th, 2010, USCIS has published this memorandum for TRAINING USCIS OFFICIALS about understanding, Employer-Employee relationship. The memorandum seems to have been prepared with a clear understanding about it, along with the specific EXAMPLES.
Memorandum has given few specific examples, which would QUALIFY for having Employer-Employee relationship, on Page 4-5 of the Memo � including the nature of the job/business. On Page 5-6, memorandum gives few specific examples, which would NOT QUALIFY for having Employer-Employee relationship. Third Party Placement / �Job-Shop� (better version of �Body-shop�, probably) is NOT QUALIFIED for meeting Employer-Employee Relationships � meaning, 3rd Party placement (which most of the small consulting companies do) doesn�t meet H1B requirement, as defined by the law � meaning for this job, the new H1B or Extension or Stamping petitions CANNOT be approved!! Period !!
This is how memorandum has identified 3rd Party Placements and in Bold letters, why it disqualifies for the H1B petitions (comments are in Red):
�The petitioner is a computer consulting company (which is what all small consulting do). The petitioner has contract with numerous outside companies in which it supplies these companies with employee to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis (this is nothing but, Service Agreement between the petitioner and the mid-vendor!). The beneficiary is a computer analyst (which is what many small consulting company�s employee are). The beneficiary has been assigned to work for the third-party company to fill a core position to maintain the third-party company�s payroll (this nothing but, Mid-Vendor�s or so-called Prime-Vendor�s or Consulting Partner�s Revenue). Once placed at the client company, the beneficiary reports to a manager who works for the third-party company (as it happens, when Consulting partner hires employee as a contractor). The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company (petitioner just runs pay-rolls!). The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments (petitioner just runs pay-rolls!). The beneficiary�s end-product, the payroll (payroll of mid-vendor/prime vendor/consulting partner), is not in any way related to the petitioner�s line of business, which is computer consulting. The beneficiary�s progress reviews are completed by the client company, not the petitioner (petitioner just runs pay-rolls!). [Petitioner Has No Right to Control; No Exercise of Control].�
Right to Control:
Supreme Court has stated the definition of Employer-Employee Relationship (Page 3 of Memo), and there it was mentioned to have �Right to Control� over the work of the employee by the employer. From the entire memo, it sounds that Right control is well-established, ONLY WHEN, at least one supervisor from the petitioner�s company works with the beneficiary at the end-client site, and supervises beneficiary�s day-to-day work. So, big Consulting companies such as Wipro, Infosys, Accenture, Deloitte etc. will be good, as they would meet �Right to Control� and that way, they will satisfy H1B requirement by law, and their petitions for similar 3rd party consulting work, will be APPROVED, but not in case of, small consulting companies!! This is because, big consulting companies such as Accenture � have their entire or partial team � along with managers etc. � working at the same client site, where the beneficiary would be working, so they could supervise their work and so exercise control over their work etc., but that cannot be the case with the small consulting � because, their actual business has been, so far, to place employees and run pay-roll � not to get the client projects!
Why one could think that there are slim chances for this memorandum to get reversed in favor of small consulting companies?
This memorandum took care of big consulting companies such as Wipro, Infosys, Cognizant, Accenture etc. � meaning, these companies and their employees are NOT impacted. They can travel freely to-and-fro their home country etc. Since, big companies are not impacted, there will not be any big lobbying or oppositions to this memorandum, per say!! There don�t seem to be a platform for small consulting companies to gather and lobby, plus most the small consulting may not get involved, with fear of exposing themselves more to other issues!! So, it might be east to assume that this memorandum is permanent and not temporary. The recent deportation also indicates that the changes like this memorandum is for serious, not just the warning!
How this memorandum relates to the recent deportation events from NY and NJ airports?
There seems to be an anticipated link between these 2 events � Memorandum and recent Deportations � kind of an indication about the current level of government scrutiny and seriousness of the H1B program. Hence, there have been advices by others that � each employer and employee should operate by strictly following the H1B program requirements.
Link to Murthy.com front page posting about this � MurthyDotCom : NewsFlash! Note to H1Bs Traveling to U.S., Working for Consulting Companies (http://www.murthy.com/nflash/nf_h1conc.html)
What one could predict as happening sooner (trend)?
� Since, it seems big consulting companies (having their own consulting projects)/full-time end-clients and their beneficiaries are not impacted with these changes � there could be trend � employee moving from small companies to big companies for a better shelter for full-time positions � especially, when small consulting company�s immediate preventions / actions to this memo cannot ensure safety.
� Big consulting companies could buy small consulting companies or small consulting companies could sell their companies to big consulting companies (having their own consulting projects), to save their employee�s future/transition etc.
Good Luck my Friends....!!
more...
pictures Wikipedia Paul Revere Page
go_guy123
06-14 05:58 PM
You have got the same Indian mentality that most of the people here that once we got a GC and citizenship let us close the doors behind us.
....
Who are you to judge the people coming after you that they are not skilled or the best and brightest.
Well he is a permanent resident of US and soon to be USC and majority of US citizens
want reduced immigration to US and can vote in elections accordingly.
Immigration is such a hot topic I dont see Obama doing anything before his second term.
....
Who are you to judge the people coming after you that they are not skilled or the best and brightest.
Well he is a permanent resident of US and soon to be USC and majority of US citizens
want reduced immigration to US and can vote in elections accordingly.
Immigration is such a hot topic I dont see Obama doing anything before his second term.
dresses help on Paul Revere#39;s Ride
transpass
03-27 03:56 PM
I was going through all the posts and I am surprised that there is no mention of Jayaprakash Narayan.
Jayaprakash Narayan(Doctor and ex IAS officer) is founder and President of LokSatta Party. If you are thinking its just another political party then you are completely wrong. Please go to www.loksatta.org to find out more about him and LokSatta party. And there lot of videos about him on Youtube and here is the one of the link to his speeches at Mumbai University
http://www.youtube.com/watch?v=t4xFCdOYTv4
Yes, I heard about this guy...Hopefully he gets a chance to do some good...
Jayaprakash Narayan(Doctor and ex IAS officer) is founder and President of LokSatta Party. If you are thinking its just another political party then you are completely wrong. Please go to www.loksatta.org to find out more about him and LokSatta party. And there lot of videos about him on Youtube and here is the one of the link to his speeches at Mumbai University
http://www.youtube.com/watch?v=t4xFCdOYTv4
Yes, I heard about this guy...Hopefully he gets a chance to do some good...
more...
makeup Stephen Colbert Shaved Head
ryan
08-18 03:46 PM
Guys,
In my humble opinion this is the best thing that could have happened!!! I feel bad for Mr. Khan suffering like a common man for a while but his suffering brought to light what we have to deal with every time we travel...
I think extreme cases bring home the point so I would encourage Indian government and the governments of all the south asian countries to take this up with the USCIS / Home land security and ask them to educate their staff...
Peace
btw...given some of the clowns on this form, I just want to say I haven't given you a thumps down (or an up). I respect what you have to say, even though we disagree.
In my humble opinion this is the best thing that could have happened!!! I feel bad for Mr. Khan suffering like a common man for a while but his suffering brought to light what we have to deal with every time we travel...
I think extreme cases bring home the point so I would encourage Indian government and the governments of all the south asian countries to take this up with the USCIS / Home land security and ask them to educate their staff...
Peace
btw...given some of the clowns on this form, I just want to say I haven't given you a thumps down (or an up). I respect what you have to say, even though we disagree.
girlfriend “[Paul Revere] warned the
GCOP
07-24 11:33 AM
We appreciate your nice prediction and Good Wishes. I hope your words will turn into truth. Thanks
Trust me. I was under the impression that it will be 3-4 years before I see green, but the reality is almost true for me now. Similarly, EB3 folks would get some news by next year. Who knows, the government will change and we have seen how keenly Obama wants a change ;). May be recapturing visas provision will be considered next year and everyone until 2006(EB3) may see some green. We never know. It's all magic and lets hope for the best. :D
Trust me. I was under the impression that it will be 3-4 years before I see green, but the reality is almost true for me now. Similarly, EB3 folks would get some news by next year. Who knows, the government will change and we have seen how keenly Obama wants a change ;). May be recapturing visas provision will be considered next year and everyone until 2006(EB3) may see some green. We never know. It's all magic and lets hope for the best. :D
hairstyles to the beat of Stephen
mirage
04-02 08:04 AM
Here's what Dalal Street biggies think
http://ibnlive.in.com/news/elections-09-rakesh-jhunjhunwala-bhanshali-debate/89309-7-p0.html
http://ibnlive.in.com/news/elections-09-rakesh-jhunjhunwala-bhanshali-debate/89309-7-p0.html
Googler
02-16 12:34 AM
I do not foresee my Jan 2003 EB-2 India PD becoming current any time soon. I'm prepared for a long legal battle. I'd rather do something constructive** that will likely change the process than sit and wait and mope.
Why ? You got the number of EB2 India cases pending that have PD before yours ?
Note that early PD applications of all categories will be freed from the FBI Namecheck blackhole, so the old situation of not-stuck later PDs getting greencards because early PDs were stuck won't happen any more. That is what created the mad, lottery like situation. So there should be slow cutoff date movements in future barring yet another f&#$ up by USCIS.
When a category becomes "Unavailable" it means that the entire annual supply for that category has been used up for that fiscal year (which ends Sept 2008). Given the degree of the EB-3 ROW retrogression, I very very much doubt there will be ANY spillover from ROW to India. At present, DOS plans to move EB-2 India only if EB-1 India has excess visas. The quota for for EB-1 India is 2803 (including dependents) in any fiscal year. So let us consider some scenarios -- say half the EB-1 India are available, so 1401 are given to EB-2 India -- do I think there are 1401 EB-2 India applicants with dependents ahead of me -- average family size of 2.2 means approx 636 applicants? Yep! No doubt about it! Hell I'm sure that there are 2803 EB-2 India applicants ahead of me.
Remember also, that the DOL backlog was FINALLY cleared. All those unlucky people with PDs even earlier than mine were FINALLY able to file their I-485s. They are all in the mix now and deserve to get their greencard before I do.
The earlier situation with the FBI blackhole meant that USCIS could rob Peter (stuck w, early PD) to give greencards to Paul (not stuck w. late PD), hence the wild movements in cutoff dates and the idea that oh, my date will come any day. Now we will really feel the supply constraint, there simply aren't enough greencards to satisfy long retrogressed EB-3 ROW and the permanently oversubscribed countries. Which means that recapture is the ONLY that too partial solution for this mess. Everything we do should be towards achieving that aim.
Why ? You got the number of EB2 India cases pending that have PD before yours ?
Note that early PD applications of all categories will be freed from the FBI Namecheck blackhole, so the old situation of not-stuck later PDs getting greencards because early PDs were stuck won't happen any more. That is what created the mad, lottery like situation. So there should be slow cutoff date movements in future barring yet another f&#$ up by USCIS.
When a category becomes "Unavailable" it means that the entire annual supply for that category has been used up for that fiscal year (which ends Sept 2008). Given the degree of the EB-3 ROW retrogression, I very very much doubt there will be ANY spillover from ROW to India. At present, DOS plans to move EB-2 India only if EB-1 India has excess visas. The quota for for EB-1 India is 2803 (including dependents) in any fiscal year. So let us consider some scenarios -- say half the EB-1 India are available, so 1401 are given to EB-2 India -- do I think there are 1401 EB-2 India applicants with dependents ahead of me -- average family size of 2.2 means approx 636 applicants? Yep! No doubt about it! Hell I'm sure that there are 2803 EB-2 India applicants ahead of me.
Remember also, that the DOL backlog was FINALLY cleared. All those unlucky people with PDs even earlier than mine were FINALLY able to file their I-485s. They are all in the mix now and deserve to get their greencard before I do.
The earlier situation with the FBI blackhole meant that USCIS could rob Peter (stuck w, early PD) to give greencards to Paul (not stuck w. late PD), hence the wild movements in cutoff dates and the idea that oh, my date will come any day. Now we will really feel the supply constraint, there simply aren't enough greencards to satisfy long retrogressed EB-3 ROW and the permanently oversubscribed countries. Which means that recapture is the ONLY that too partial solution for this mess. Everything we do should be towards achieving that aim.
vdlrao
07-14 02:52 PM
Your assumption does not hold good for this year. As someone else already pointed out USCIS processed 80 to 85% of year 2008 quoto already, it would have only 15 to 20K visa till october08. For next year, if still the horizontal overflow happens it would add more numbers.
Nowhere i have seen in EB2 it goes beyond 50K except 2005(but there was AC21 implemented to recapture unused visa on 2005(Overall issued visa were 246,877.)
EB-2 India would go back to some date in October 2008,but to what date is anybody's guess.Lack of data about EB2 India for 2003,2004 is preventing us from forecasting this.
My guess for EB-2(I) for 2005 2006-MID JUNE EB2(I) is about 8000 from Perm Data.
I assume it would move back to 2004 ARP or MID 2005 to start with in 2008 November.
USCIS starts the Spill over normally after 6 months or 8 months. So to start year 2009 USCIS would have only 800 visa for first quarter for EB2-India.
For first quarter EB2 India will have 1/4 of 9,800(7% of 140k visas), which are 2,450 visas. I wonder
how u got 800 visas. I dont see much retrogression in EB2 dates other than some mild ones. And the dates move pretty fast on a whole.
About EB3: it wont be like now all the time. The Immigration reform bill wont keep failing all the time. There would be a time for it to pass in the next two years. As soon as it passes all our Employment Based categories, specifically EB3, will get greatest benefit with PDs almost becoming current.
Nowhere i have seen in EB2 it goes beyond 50K except 2005(but there was AC21 implemented to recapture unused visa on 2005(Overall issued visa were 246,877.)
EB-2 India would go back to some date in October 2008,but to what date is anybody's guess.Lack of data about EB2 India for 2003,2004 is preventing us from forecasting this.
My guess for EB-2(I) for 2005 2006-MID JUNE EB2(I) is about 8000 from Perm Data.
I assume it would move back to 2004 ARP or MID 2005 to start with in 2008 November.
USCIS starts the Spill over normally after 6 months or 8 months. So to start year 2009 USCIS would have only 800 visa for first quarter for EB2-India.
For first quarter EB2 India will have 1/4 of 9,800(7% of 140k visas), which are 2,450 visas. I wonder
how u got 800 visas. I dont see much retrogression in EB2 dates other than some mild ones. And the dates move pretty fast on a whole.
About EB3: it wont be like now all the time. The Immigration reform bill wont keep failing all the time. There would be a time for it to pass in the next two years. As soon as it passes all our Employment Based categories, specifically EB3, will get greatest benefit with PDs almost becoming current.
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