On Monday, March 12th, USCIS released new guidance that clarifies that staffing firms are eligible to file petitions under the H-1B visa program even though they place workers at third-party sites. TechServe Alliance has been seeking such clarification since issuance of the so called Neufeld Memo in January 2010, which cast doubt on whether staffing firms could establish the employer-employee relationship necessary to file H-1B petitions.
Under the new guidance which is included in amended FAQs, 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.” While not an exhaustive list, the activities enumerated by the guidance are functions that staffing firms regularly perform. Accordingly, the new guidance will go a long way in putting to rest the erroneous idea that the staffing firm model is ineligible to participate in the H-1B program.
The guidance also clarifies that “end-client letters” are not required and other evidence can be used during the petition process. The full text of the updated guidance can be found on USCIS’s website which is linked here.
“We are grateful to Director Mayorkas for addressing industry concerns through the release of the new guidance,” stated Mark Roberts, CEO TechServe Alliance. “While there is still more work to be done, I see this as a positive first step towards ensuring IT staffing firms have access to H-1B professionals on the same basis as companies in other industries,” added Roberts.
In 2010, TechServe Alliance filed suit against USCIS over the Neufeld Memo. While the court declined to issue an injunction, the government conceded that the Neufeld Memo was not binding on adjudicators. Following meetings between TechServe Alliance and Sen. John Cornyn, R-Texas, the Senator sent a letter to USCIS weighing in on behalf of IT staffing companies. The Senator’s efforts led to a meeting with TechServe Alliance leadership, the U.S. Chamber of Commerce and USCIS Director Mayorkas and his senior staff to discuss the U.S. IT staffing industry and the need for clarification of the Neufeld memo. Monday’s guidance is the culmination of those efforts.
TechServe Alliance is a collaboration of IT services firms, clients, consultants and suppliers dedicated to advancing excellence and ethics within the IT services industry. Hundreds of IT staffing, IT solutions and IT consulting firms and tens of thousands of affiliated professionals, count on TechServe Alliance to keep their leadership informed, engaged and connected. TechServe Alliance serves as the voice of the industry before the policymakers and the national and trade press. By providing access to the knowledge and best practices of an entire industry and tapping the "collective scale" of hundreds of companies, TechServe Alliance supports its members in the efficient delivery of best-in-class IT services for clients and exceptional professional opportunities for every IT consultant.