Adapting to Changes in the H-1B Process

Murali Bashyam: My name is Murali Bashyam.  I’m here with Ame Coats.  We’re both attorneys with the law firm of Bashyam Spiro.  We’re going to go ahead and begin on all the changes that are happening to the H1B program, and what it means for you and your employees.  And with this Neufeld memo, which is what we’re gonna talk about today, a lot of employers, especially IT consulting companies, are going to be a little bit cautious when filing these cases given all the additional documentary requirements that the immigration service says they need.  It definitely started last year.

A lot of companies filed on April 1st, and provided the documentation that was generally required of them based on prior years.  And so when these cases were filed on April 1st, suddenly a lot of companies started getting RFEs, request for evidence.  They started asking for vendor contracts, any client letters, documentation of the company’s legitimacy.  That’s always been the same.  The immigration service has always required that, especially for smaller companies.

But just the way the service started processing these cases, it was just a radical shift from how they had handled it the preceding years.  So attorneys and employers were both shocked and had to adapt and present evidence in response to the RFEs.  So what happened?  A lot of attorneys, including us, we said well, if you’re gonna ask for different documentation, it would have been nice for you to tell everybody beforehand what the new processing norms were going to be.

Ame Coats: Oh yeah.  There was a ton of chatter on the web between immigration attorneys, like basically what’s going on?  What are the standards?  What’s happening?  What do they want?  And we got nothing for a long time.

Murali Bashyam: So finally this year in January, the immigration service issued a memo, famously referred to now as the Neufeld memo.  And that memo sought to define what they consider to be the employer/employee relationship.  In an economy like this, it’s understandable for a lot of people to make a lot of noise about hiring foreign workers versus U.S. workers.  So that and the issue of fraud I think are the two biggest reasons why the immigration services started tightening up the processing of H1B.  Right now, we’re not seeing any major difference.

I know that this memo has caused a big uproar with the American Immigration Lawyers Association and with the immigration bar in general.  I’ve used this word a couple of times, which is the word adapt.  So whether you agree with what the immigration service is doing or disagree with it, whatever opinions you have on it, well you can do two things.  One is to adapt to the circumstances and provide what they’re asking for.  And the other thing you can do is if you disagree with the policy, yell and scream to your senators and congressman in your state, because they need to know.

This obviously is a situation that does impact employers and some in a very negative way, and it’s important that employers follow the rules.  We’re definitely encouraging employers to follow all the rules, but at the same time it’s important for government to understand these industries as well.  And we question whether they really do understand it or not.  Well Ame, we’re going to like look into the crystal ball here [laughter] and try to predict what’s going to happen in the future.  I think that the immigration service is definitely going to probably tighten up their processing of H1B applications based on all these additional documentary requirements.

But we’ll just have to see.  And like I said, employers just have to adapt and provide as much documentation on control, anticipate that the immigration service is going to question the whole control issue, and modify their practice and incorporate some of these items that we discussed today.  There’s no right or wrong answer here, and we talk about all these documents and getting them an employment agreement, setting up a policy and all that, but don’t do it just for the sake of doing it.  I mean once you put it in place –

Ame Coats: Just for the sake of H1B.  Right.

[Crosstalk]

Murali Bashyam: Just for the sake of H1Bs and immigration.  When you put it in place, actually follow through with it.  Do it and document it.  And the documentation as we mentioned before is very, very important.

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