CWS 3.0: March 14, 2012

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News: H-1B Difficulties for Staffing Firms Cleared

The USCIS issued new guidance this week confirming staffing firms as legitimate employers for H1-B visa purposes, the TechServe Alliance reported today. 

Staffing firms had been experiencing difficulty bringing in foreign contingent workers on H-1B visas, said Mark Roberts, CEO of the TechServe Alliance, a collaboration of information technology services firms, clients, consultants and suppliers.

H-1B visas allow firms to bring in highly skilled individuals, such as information technology professionals. Staffing firms, however, have been challenged in bringing in H1-B workers after the USCIS released its “Neufeld Memo” in 2010, which listed “third-party placement/job shop” as an example of a firm that does not qualify as an H-1B visa employer.

Under the new guidance, staffing firms can demonstrate an employer-employee relationship if they can prove whether they “will pay the beneficiary’s salary…determine the beneficiary’s location and relocation assignments…and… perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary.” The guidance also clarifies that “end-client letters” are not required and other evidence can be used during the petition process.

The TechServe Alliance filed suit against USCIS in 2010. The judge dismissed the case without issuing an injunction to prohibit the use of the memo, but the government did concede that staffing firms could be considered employers for the purposes of bringing in H-1B workers. Last year, opponents of the Neufeld Memo also got a boost when Sen. John Cornyn, R-Texas, weighed in against the memo.

However, problems remained. Roberts said last week in an interview that staffing firms have been bringing in H-1B workers, but were seeing challenges.

“A staffing firm is almost assured of getting an RFE (request for evidence),” Roberts said. Some also had to produce a letter from the client — which some clients did not provide.

In addition, some consulates overseas were refusing to stamp visas for workers going to staffing firms despite clearance from the USCIS, he said. 

The U.S. Citizenship and Immigration Service will begin accepting H-1B petitions on April 2 at the start of the 2012 federal fiscal year. 

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