by Don Slowik, Attorney and ImmigRanter at Slowik & Robinson, LLC
Employment is picking up, and so is the need for qualified immigrants. Unfortunately, the situation wasn’t helped by Donald Neufeld’s January 8, 2010 guidance memorandum. It had an adverse impact on employers, particularly IT consulting and staffing companies who placed H-1B consultants at clients’ sites. The memo required that the client provide a letter stating that the consultant worked there, that they were performing the duties necessary for H-1B employment and that the consulting company retained the right to control the consultant’s employment. It was a requirement almost impossible to meet for reasons having to do with employment confidentiality agreements, with client knowledge of the entire chain of events that led from their need to the consultant’s appearance, and with the client’s willingness to supply such certification.
On March 12, 2012 the U.S. Citizenship and Immigration Services issued a revised Q&A on the Neufeld memo that addressed the issue. The answers to Questions 5 and 13 removed the requirement that the client provide the letter. It does require, though, that the employer prove the employment relationship with the consultant, regardless of the job site. This has been a point of confusion, particularly in the IT consultant area, because the consultant typically is not hired directly by the company needing their expertise. As a matter of fact, there may be two or more “layers” between the company that signs the consultant’s check and the client site where the work is done. Those layers might be the IT company that needs the consultant and the staffing agency that finds him or her. That complexity has been a concern, because it was difficult to determine who controlled the employee – a necessary condition for an H-1B visa.
The “right to control” requirement can now be satisfied through other documentation. It is good development for several reasons. One is the U.S. economy’s continuing need for H-1B workers due to the shortage of qualified U.S. citizens. Another is that it helps clarify and simplify the process and the documentation required to hire qualified people on temporary H-1B work visas, to place them and to maintain the required level of employer control. A third reason is that our colleges and universities each year graduate a pool of foreign national students who are highly qualified candidates. If they can stay here and not have to return to their home country when their education is completed, it benefits U.S. businesses and our economy, helping all of us.
For a full discussion of the issue, read the article in the Immigration Daily.
The United States is not producing enough qualified IT applicants who are U.S. born. That leaves us with four choices: produce more qualified U.S. applicants overnight, send jobs overseas, forego the service, or make it easier for businesses to temporarily hire qualified foreign workers. Producing more qualified U.S.-born applicants will take time; it will not happen overnight. In the meantime, sending these jobs overseas provides the service but sends dollars overseas. Foregoing the service can’t be done in today’s connected world. Making it easier for U.S. businesses to hire qualified foreign workers is the best interim solution to produce more IT specialists and eliminate reliance on exported jobs until our colleges and universities can produce enough U.S. workers to meet the demand.