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Immigration Newsletter
Fall 2010 - Volume 2, Issue 2
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Ask RS
Recent Immigration News
Ross Silverman LLP
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Welcome to the Fall edition of the Ross Silverman newsletter.  We would like to take this opportunity to update you on a few important changes to certain international travel and visa appointment procedures. 


We are continuing to see an uptick in visa processing delays at U.S. Consulates abroad due to "administrative processing."  In these cases, visa applications are forwarded from the Consulate to the State Department in Washington D.C. for further processing and often the visa applicant is given little explanation for the delay.  It is our understanding that several different types of security checks are being grouped under the heading of "administrative processing," including checks based on dual-use technology (i.e. technology that could have both a mundane and/or a hazardous purpose).  Generally these checks are completed within 2 to 4 weeks, but in some cases they continue for several months.  As always, we strongly recommend that all foreign nationals who will be applying for nonimmigrant visas during foreign travel notify our office of their upcoming travel plans so that we can properly advise them.  We also recommend that applicants schedule their visa appointments for the beginning of their trip to minimize the chances that processing delays will delay their return to the U.S.  


On a separate note, recently the U.S. State Department changed the visa reciprocity schedule for China to allow Chinese nationals to obtain multiple-entry visas valid for up to 12 months.  This applies to Chinese nationals seeking visa issuance in any H classification (H-1B, H-4, etc.).  Validity periods and entry restrictions on U.S. nonimmigrant visas are based on the concept of "reciprocity," or the restrictions that the other country places on U.S. citizens for similar types of visas.  Previously, Chinese nationals applying for H-1B visas at a U.S. Embassy abroad were only issued visas valid for a maximum of 3 months and 2 entries.  This policy made international travel difficult for many Chinese nationals, and therefore the new visa reciprocity schedule is a welcome change.


In another important change, the U.S. Embassy and Consulates in Canada have transitioned to a new system for scheduling nonimmigrant visa appointments. As of September 1, 2010, the NVARS system is no longer in use, and nonimmigrant visa applicants must use the new CSC Visa Information Services site to obtain information and schedule an appointment.  The new website is located at  With the new system, nonimmigrant visa applicants no longer have to pay additional phone charges or obtain PIN numbers to access information or appointment scheduling services.  However, applicants will now have to pay the MRV (machine readable visa) fee, also known as the visa application fee, before they schedule an appointment.  For those applicants who have paid the MRV fee prior to September 1, 2010, but have not scheduled an appointment, there is a grace period from September 1, 2010 until October 1, 2010 during which time the applicant can use the MRV fee for appointment scheduling.  If the applicant has not scheduled an appointment prior to October 1, 2010, they will have to pay the MRV fee again through the new service in order to schedule an appointment.


The above travel changes could affect many of your foreign national employees.  If you or your employees have any questions about these changes, please do not hesitate to contact our office.

Ask RS

Many of our clients employ individuals in nonimmigrant status at so-called third-party worksites, meaning a worksite that is not controlled by the employer.  This year, there have been many changes in USCIS practices with regard to such cases, so we will address some common questions here:


Q:  Do these changes in USCIS practice reflect a change in USCIS policy? 


A:   No, at least not officially.  USCIS is maintaining that it has not adopted any policy changes and that the memorandum issued earlier this year - the so-called Neufeld Memo of January 8, 2010 - in which the guidance regarding employee-employer relationships was published, represents merely a "memorialization" of long-standing policy.



Q:  What types of cases and situations does this guidance impact? Does it pertain to all employers, or just to employers of individuals who do not always work on-site at the employer's location?


A: The Neufeld Memo specifically addresses how employer-employee relationships will be determined for H-1B purposes.  The guidance in the memo purports to be responding to problems that have arisen in determining whether an employer-employee relationship exists, "with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites."  However, the guidelines specified in the memo are to be used by USCIS officers in adjudicating all H-1B petitions, so the guidance potentially will impact all employers, even in situations where the employee always works on-site at the employer's location.


The guidance provides that, in order to demonstrate an acceptable employer-employee relationship, the petitioner must show that it has the "right to control over when, where, and how the beneficiary performs the job."  The guidance then provides a list of factors that USCIS will consider in making the determination of whether "right to control" exists, asserting that no one factor will be decisive.  This suggests, though, that the petitioner must provide substantive evidence that it meets a certain minimum number of these factors, and that the adjudicating USCIS officer then will make a subjective decision as to whether the employer-employee relationship exists. 


Moreover, the strict categorization of employer-employee relationships based on matching up to a set of restrictive factors is problematic because it ignores the fact that there are many different business models that may not lend themselves to being described by these factors, where there still exists a legitimate employer-employee relationship. 



Q:  Will the memo make it harder for my company to obtain H-1Bs or L-1s for our employees?


A:  This is not yet clear.  However, in an effort to avoid expected Requests for Evidence (RFEs) on these issues, our office is now requesting additional information about the employee-employer relationship when preparing an H-1B or L-1 petition for an individual who is working at a client site or is otherwise not working in an employer-controlled location (see below).



Q:  What factors does USCIS take into account when determining what constitutes an employee/employer relationship?  Do we have to demonstrate that we meet all of these requirements in every case? 


A:  The Neufeld Memo states that the following factors will be considered:


  1. Does the petitioner supervise the beneficiary, and is such supervision off-site or on-site?
  2. If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to the main office routinely, or site visits by the petitioner?
  3. Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis, if such control is required?
  4. Does the petitioner provide the tools or instruments needed for the beneficiary to perform the duties of employment?
  5. Does the petitioner hire, pay and have the ability to fire the beneficiary?
  6. Does the petitioner evaluate the work-product of the beneficiary, i.e. perform progress/performance reviews?
  1. Does the petitioner claim the beneficiary for tax purposes?
  2. Does the petitioner provide the beneficiary any type of employee benefits?
  3. Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
  4. Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
  5. Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

The memo indicates that no one factor will be considered decisive in determining the employee-employer relationship.  However, given the subjective nature of the determinations that USCIS officers will be making and until we have a clearer picture of how USCIS will be defining the "minimum" number of factors to constitute a legitimate employer-employee relationship, we would advise erring on the side of caution, and addressing and providing supporting documentation to show that the petitioner's relationship to the beneficiary fulfills as many of the listed factors as possible.



Q:  Is there specific additional documentation or information that my company needs to provide to prove the employee/employer relationship in cases where the employee will be working off-site at a client site or other work location?


A:  We recommend that the petitioning company provide information and documentation with every petition of this nature which specifically addresses as many of the factors listed above as possible.  We will then integrate an explanation of the employee/employer relationship into the letter of support for the visa petition.  We will also submit copies of any relevant supporting documentation to USCIS along with the petition. 

If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at
Recent Immigration News

Ross Silverman Ranked as First-Tier Law Firm in Boston Immigration Law


We are excited to announce that U.S. News Media Group and Best Lawyers have named Ross Silverman a First-Tier law firm in the area of Immigration Law in Boston in the 2010 Best Law Firms rankings.  This ranking is primarily based on client surveys - using a scale of 1 (weakest) to 5 (strongest), clients voted on expertise, responsiveness, understanding of a business and its needs, cost-effectiveness, civility, and whether they would refer another client to the firm.  This is the first year that U.S. News has teamed with Best Lawyers to rank law firms, and we are proud to be included in the inaugural rankings. 



USCIS is increasing Filing Fees


U.S. Citizenship and Immigration Services (USCIS) has announced that, effective November 23, 2010, it will be raising its filing fees by a weighted average of 10 percent, adding several new fees, and adjusting the premium processing fee according to the rate of inflation.  Any application or petition that is postmarked on or after November 23 must contain the new filing fee(s).  For more information, please view our News Flash on this issue.



Department of State Contacting H-1B and L-1 Petitioners


The Department of State (DOS) Visa Office has announced that the Kentucky Consular Center (KCC) is now verifying the information contained in nonimmigrant visa applications, including H-1B and L-1 petitions, by contacting the petitioning employer.  Please view our News Flash for more information.  We strongly recommend that you notify any employees within your company who may potentially be contacted to ensure they are aware of the details contained in our News Flash.



New Fee for Some H-1 and L-1 Petitions


On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which contains provisions to increase H-1B and L-1 petition fees in those cases where the petitioner employs 50 or more employees in the United States and where more than 50% of those employees are in H-1B or L nonimmigrant status.  Such petitions for an initial grant of status must now file with an additional filing fee of $2,000 for H-1B petitions and $2,250 for L-1A and L-1B petitions. 

While this new fee does not apply to the majority of your companies, it is important to note that USCIS is in the process of revising the I-129 forms for these petitions.  Until the forms are revised, we have been advised by USCIS that we should provide the total number of employees in the U.S. and the total number of H-1B and L employees with the company on every H or L petition we file.  We will therefore be requesting this information for every case moving forward, in order to ensure that all petitions will be accepted for filing without issue regarding the applicability of these new fees. 



USCIS Continues to Accept Cap-Subject H-1B Petitions for FY2011


U.S. Citizenship and Immigration Services (USCIS) has announced that, as of September 24, 2010, it has received approximately 39,600 H-1B petitions counting toward the annual cap of 65,000, and approximately 14,400 petitions counting toward the 20,000 visas set aside for individuals with advanced U.S. degrees.  USCIS continues to provide regular updates on the receipt and processing of FY2011 H-1B petitions, which are available via their website at  We will notify you when it appears that we are close to reaching the cap.  In the meantime, you can continue to consider candidates that will require H-1B sponsorship.

In the News: What's Happening at RS

October 20, 2010: Howard Silverman will speak on a panel entitled "Advanced Topics in Asylum Law: Standards and Recent Trends for a Particular Social Group" at the Boston Bar Association Asylum Committee's Continuing Legal Education (CLE) event.


October 22, 2010: Sharryn Ross will speak on a panel at the American Immigration Lawyers Association's PERM Conference in New Orleans, LA about Pre-Filing PERM Issues. 


December 14, 2010: Heidi Snyder and Rhonda Tietjen will speak about the PERM process at the Massachusetts CLE Immigration Basics Conference in Boston.

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.