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Leasing H-1B Employees Banned by USCIS
On January 8, 2010, USCIS issued a decision that appeared to affect primarily the IT industry. The decision defined the parameters of when IT personnel on an H-1B visa can be placed offsite from their primary employer, without losing their H-1B status. The policy memorandum held that where personnel work at another business' site, and take their day-to-day supervision and direction from company personnel at that foreign site, that they may be deemed to be within the control of the second company, and therefore in violation of their H-1B status to their sponsoring company. What does this have to do with the medical profession?
The same situation exists and applies where a physician obtains their H-1B visa through one entity (whether that be a hospital or a private practice) and then practices medicine under the direct supervision and control of a second entity who did not sponsor the H-1B visa. Increasingly, our office has seen situations where a physician hired by a hospital or major medical center as an H-1B sponsor is in fact working as a physician in a private practice that supports the hospital. Where a physician is taking day-to-day supervision and direction from the practice, but his H-1B visa is held by a separate health center, USCIS could find this arrangement to be in violation of an H-1B granted solely for the benefit of the medical center. There are ways to avoid getting into such a problem with USCIS, however. Most of the issues that would raise a concern with USCIS can be addressed by careful drafting of the employment contract and by clarifying upfront to USCIS that a physician may be splitting time between two different worksites. USCIS policy permits professional to exercise their trade at more than one location; USCIS simply wants to be informed in the initial H-1B application that such an arrangement is intended. The goal of the January 8 USCIS memo is to put an end to what they call a "job shop" industry, where companies petition for H-1B workers with no intention of having employment within the petitioning company. Rather, these petitioning entities are merely acting as a job referral/clearing house situation. It is not the intention of USCIS to prevent professionals, including physicians, from having the flexibility to provide necessary medical services that often require physicians to practice in several different locations in support of their practice (hospitals, surgical centers, clinics, and a private office). Those engaged in medical hiring should avoid using terminology with H-1B visas that seems to be quite acceptable within the medical establishment when dealing with U. S. physicians. Specifically, the idea of "leasing employees" is contrary to the parameters of the H-1B visa program. "Leasing employee" agreements may be legal and enforceable when dealing with a U. S. citizen physician, but that terminology in and of itself could result in USCIS concluding that the employer who petitioned to obtain the H-1B visa for a foreign national physician has surrendered their day-to-day supervision and control of that physician to a new and different entity. In the eyes of USCIS, such arrangements would require the filing of a new and second H-1B visa to transfer the foreign physician to the receiving medical entity.
Wording is very important to USCIS in its evaluation of whether a physician is operating consist with the terms of its H-1B visa. Temporary assignment to a separate entity for orientation and training is likely consistent with the terms of an H-1B visa; whereas, "leasing" of that same physician to a second entity is not. The more permanent and formal the assignment of the physician is to an entity other than the organization that obtained the H-1B visa, the more likely it is that USCIS will take the position that an H-1B worker is only authorized to be employed by the employer who petitioned for their visa in the first place.
As noted above, careful drafting of contractual language and full disclosure of the intent to share a physician among several sites is acceptable to USCIS, so long as it is detailed at the time of filing for the visa. This can be accomplished through close coordination of your immigration counsel, to avoid placing either the health system or the individual physician in any position of jeopardy.
If you have any questions regarding the assignment of physicians outside of the organization that appears as the formal petitioner on their H-1B visa application, please give our office a call at 717-848-5134.
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For more additional information, please also visit our website, focusing specifically upon medical immigration issues at www.medicalimmigration.com.
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USCIS Updates Forms I-907, I-140 and changes filing address of I-485.
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USCIS has revised and updated three commonly used forms filed in connection with employment based petitions. The new Form I-907, Request for Premium Processing, was posted in February 2010 and is dated 08/10/09. The new form includes a second page and advises that it will issue a refund of the Premium Processing fee to the addressee listed on the request if USCIS does not take an action on the relating premium processing eligible case within 15 calendar days after the request has been physically received at the appropriate USCIS office.
Last month USCIS updated the I-140, Immigrant Petition for Alien Worker and it is dated 01/06/10. The new form gives the petitioner the option, if necessary, of filing the I-140 without the original certified ETA 9089. If the petition is being filed without an original labor certification, the petitioner may request in Part 4 of the form, that USCIS request a duplicate labor certification from the Department of Labor.
On February 25, 2010, the majority of applicants filing Form I-485 will submit the form to a USCIS Lockbox facility, based on the eligibility category under which they are filing (more information regarding this is available in the revised form's instructions). USCIS will forward all incorrectly filed forms up to March 29, 2010. After that date, incorrectly filed forms will be returned to the petitioner with instructions to send the form to the correct location. The current version of this form is dated 12/03/09. Previous versions of this form will be accepted until March 29, 2010. After that date, previous versions will be rejected.
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