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Friday, July 25, 2008

#1: Your Employer is NOT H-1B quota exempt, BUT, your Employment is "AT" an H-1B Exempt Institution (a “third party petitioner")

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The USCIS has interpreted the regulations to deem an H-1B nonimmigrant "quota exempt" who works "at" a quota exempt institution, even if he or she works for a non-exempt employer, under certain circumstances, as discussed in this article. Normally, in order to be deemed quota exempt, an H-1B nonimmigrant would have to actually work for an exempt employer, such as "Institution of Higher Education", e.g., a College or University, or a company which is affiliated or related to an "Institution of Higher Education", or a Nonprofit Research Organization or Government Research Organization.

However, under this interpretation, the USCIS has decided to deem even H-1B workers who are employed by non-exempt employers, such as for-profit companies, to be exempt, provided that they work "at" an exempt institution, and meet other conditions. It is important to note that these are complex cases, and experienced legal counsel should be retained to prepare these cases. However, this article will review some of the key concepts.

This USCIS policy is set forth in a Memorandum (Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000, by Michael Aytes, Associate Director for Domestic Operations, USCIS), as follows:

Commonly, qualifying institutions petition on behalf of current or prospective H-1B employees and claim this exemption. In certain instances, petitioners that are not themselves a qualifying institution also claim this exemption because the alien beneficiary will perform all or a portion of the job duties “at” a qualifying institution. For purposes of this memorandum, such petitioners are referred to as “third party petitioners.” A third party petitioner is one who petitions on behalf of an H-1B worker who will work “at” a qualifying institution, but where the alien is or will be employed by the third party petitioner, not the qualifying institution. These types of cases should be adjudicated based on the guidance provided below.

Congress deemed certain institutions worthy of an H-1B cap exemption because of the direct benefits they provide to the United States. Congressional intent was to exempt from the H-1B cap certain alien workers who could provide direct contributions to the United States through their work on behalf of institutions of higher education and related nonprofit entities, or nonprofit research organizations, or governmental research organizations. In effect, this statutory measure ensures that qualifying institutions have access to a continuous supply of H-1B workers without numerical limitation.

USCIS recognizes that Congress chose to exempt from the numerical limitations in section 214(g)(1) aliens who are employed “at” a qualifying institution, which is a broader category than aliens employed “by” a qualifying institution. This broader category may allow certain aliens who are not employed directly by a qualifying institution to be treated as cap exempt when needed to further the essential purposes of the qualifying institution.

USCIS will, therefore, allow third party petitioners to claim exemption on behalf of a beneficiary under either section 214(g)(5)(A) or (B), if the alien beneficiary will perform job duties at a qualifying institution that directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research. Thus, if a petitioner is not itself a qualifying institution, the burden is on the petitioner to establish that there is a logical nexus between the work performed predominately by the beneficiary and the normal, primary, or essential work performed by the qualifying institution.

In many instances, third-party petitioners seeking exemptions from the H-1B cap are companies that have contracts with qualifying federal agencies (or other qualifying institutions) which require the placement of professionals on-site at the particular agency. The H-1B employees generally perform work directly related to the purposes of the particular qualifying federal agency or entity and thus may qualify for an exemption to the H-1B cap. However, qualifying third-party employment can occur in a variety of other ways. USCIS therefore is providing a non-exhaustive list of examples in the AFM to assist adjudicators in determining cap exemption eligibility.

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Thus, if a petitioner is not itself a qualifying institution, the burden is on the petitioner to establish that that there is a logical nexus between the work predominately performed by the beneficiary and the normal mission of the qualifying entity. Petitioners must therefore demonstrate how the beneficiary’s duties are directly and predominately related to, and in furtherance of, the normal, primary or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research.

The following are key examples provided by the USCIS in its Memo:

Example 1: Company A, a for-profit consultant firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of an employee working directly for the firm. The H- 1B petition describes the alien beneficiary’s job duties, which will be performed on-site at a qualifying governmental research organization pursuant to a joint-agreement between the two entities. Company A submits evidence in support of its H-1B petition demonstrating that the alien beneficiary will be working on a research project performing duties similar to those performed by actual employees of the governmental research organization in furtherance of the qualifying entity’s mission. If the alien beneficiary was sponsored directly by the government research organization, he or she would clearly qualify for the H-1B cap exemption.
Q: Would the alien beneficiary qualify for the H-1B exemption?
A: Yes. In this case, the alien beneficiary would be exempt from the H-1B cap because the alien beneficiary will perform research duties that would or could otherwise be performed by employees of the qualifying institution, in furtherance of the qualifying institution’s primary mission.
Example 2: Company B, a for-profit hospital and research center that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a renowned Oncologist who will be a direct employee of the hospital and whose duties will consist of clinical treatment of cancer patients and laboratory research on a new medication to treat liver cancer. Company B maintains a relationship with a qualifying non-profit research organization dedicated to finding a cure for liver cancer, whereby Company B occasionally provides resources and data in exchange for access to the non-profit’s national database on protocols for treating liver cancer. Company B’s new Oncologist will spend 55% (i.e., a majority) of her time working on-site at the non-profit research organization conducting research and laboratory experiments on the new medication to treat liver cancer and accessing the national database. The Oncologist will be performing sophisticated research and laboratory experiments that are not normally conducted by employees of the non-profit research organization but that nonetheless directly and predominantly further the normal, primary, or essential purpose, mission, objectives or function of the non-profit organization. Company B and the non-profit entity will collaborate on a joint paper publishing the research.
Q: Would the Oncologist qualify for an H-1B cap exemption based on this employment?
A: Yes. In this case, the Oncologist’s work clearly furthers the overall mission of the qualifying non-profit research organization and benefits the United States The fact that Company B and the qualifying non-profit entity share a cooperative relationship helps establish a sufficient nexus between the Oncologist’s work and the normal, primary, or essential purpose, mission, objectives or function of the non-profit organization. Further, the Oncologist will spend more than half of her time working physically on-site “at” the qualifying entity.
Example 3: A medical fellow in pediatrics has been employed at a qualifying non-profit university medical center for two years in H-1B status. At the end of the fellowship, the doctor will become a member of Company C, a private pediatrics practice group which has its primary offices within the university medical center and predominantly trains medical students and treats patients in the medical center. The doctor will be doing exactly the same work that he did during his fellowship, including remaining on the university medical center’s faculty, but for reasons related to hospital billing practices and medial malpractice insurance requirements, his technical, and therefore petitioning, employer will be the private pediatrics practice group.
Q: Would the doctor qualify for an H-1B cap exemption based on this employment?
A: Yes. In this case, the doctor would be exempt from the H-1B cap because the conditions of employment demonstrate that the doctor will be performing the same work that he performed while employed directly by the qualifying university medical center. Thus, the H-1B employment directly furthers the primary mission of the hospital because the doctor will remain on the university medical center’s faculty, and will continue to educate and train its medical students and treat patients at the medical center.
Example 4: Company D, a for-profit market research firm that would not otherwise be a qualifying institution, files an H-1B petition on behalf of a direct employee. The H-1B petition states that the alien beneficiary will be conducting a specific kind of market research on-site at a qualifying University. In addition, the petition states that the University has a specialized research tool that can only be accessed from its facilities and that the alien beneficiary’s research will be conducted for the benefit of the petitioner’s clients and business, and not for the University.
Q: Would the alien beneficiary qualify for the H-1B exemption based on this employment?
A: No. In this case, the alien would not qualify for a cap exemption as he or she is only physically located “at” the qualifying institution and no nexus has been demonstrated between the work performed by the beneficiary and the normal purpose of the qualifying entity. The alien beneficiary will not perform work for the benefit of the qualifying institution, but rather for the for-profit firm.

http://www.antaoandchuang.com/en/temporary-visas-work-study-tourist/1-your-employer-not-quota-exempt-your-employment-e-0

3 comments:

cmilan485 said...

USCIS DHS Form I-90 Form I-797C L02773316 L01432062 L24033516

The American Bar Association Section of Public Utility, Communications and Transportation Law 321 North Clark Street Chicago IL 60610-4714 The United States of America

The United States of America Labor Committee’s report reviews important developments in the past year under the federal labor and employee benefit laws. In the employment law section, a decision of the U.S. Supreme Court that expands Title VII's definition of retaliation is of particular interest. This section of the report also addresses significant lower court decisions, including many of first impression, under the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and Title VII. Finally, it analyses several National Labor Relations Board (NLRB) decisions and a recent division on whistleblower activity protected by the Sarbanes-Oxley Act.
Turning to employee benefits, the report addresses a Supreme Court decision, which again reviews the scope of equitable relief available under ERISA and, in particular, where a welfare plan seeks to enforce its subrogation rights. This section of the report also calls attention to new pension legislation and reviews a number of important decisions in two areas of continued significance to litigators: cash balance plans and so-called employer stock drop cases.

The tenth Circuit Reverses Verdict , Finds Older Discharged Employees' Testimony Not Outweighed by Danger of Prejudice
The Tenth Circuit ruled in Mendelsohn vs. Sprint / United States Management Co. that the probative value of the testimony of other older employees terminated in a reduction in force (RIF) was not outweighed by the danger of undue prejudice to the employer. There, the plaintiff, who was the oldest member of her unit at the time of the RIF, brought an ADEA action alleging that she had been terminated because of age. She intended to use the testimony of five other discharged employees over the age of forty to demonstrate a "pervasive atmosphere" of age discrimination. The district court found the testimony inadmissible because the employees were not "similarly situated" to the plaintiff, i.e., under the same manager. After an eight-day trial, the jury found for the employer.
On appeal, the Tenth Circuit ruled that the district court abused its discretion in excluding such testimony, finding " that the evidence [plaintiff]sought to introduce is relevant to [the employer's] discriminatory animus toward older workers, and the exclusion of that evidence unfairly inhibited [plaintiff] from presenting her case to the jury". As the court explained: "because direct testimony as to the employer's mental processes seldom exists,...evidence of the employer's general discriminatory propensities may be relevant and admissible to prove discrimination."

In Syverson v. International Business Machines Corp., the Ninth Circuit held that IBM failed to comply with the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. 626(f)(1), because the language in a waiver given to employees terminated in a RIF was not "written in a manner calculated to the understood" by the average employee. The waiver included a release and a covenant not to sue that, according to the court, engendered confusion over whether employees could pursue ADEA claims. Thus, the employees did not "knowingly and voluntarily" waive claims under ADEA, as required by the OWBPA.

The waiver stated that the employee released all claims, including "claims arising from the [ADEA]," and contained a "covenant not to sue" under which the employee "agreed ... to never institute a claim at any kind against IBM...related to...employment with IBM" other than an "action based solely under the [ADEA]." The court found that to a law reader, and even to attorneys unfamiliar with the technical distinction between a release and a covenant not to sue, the waiver's language could seem contradictory and imply retention rather than a release of ADEA claims. The court noted that the distinction between a release and a covenant not to sue is particularly murky when both are included in a single document. It thus held that the waiver did not satisfy the OWBPA's requirement that waivers be written in a "manner calculated" to be understood by the average affected employee.

In Timmons v. General Motors Corp., plaintiff brought an action against his employer for involuntarily placing him on disability leave. Plaintiff was diagnosed with multiple sclerosis in 1992, eighteen years after he had started employment. By 1999, he was promoted to a manager position that required driving and the ability to travel as much as 50 percent of the time. As his condition worsened, his employer accommodated him by providing a motorized scooter, renting scooters for him while on business trips, allowing him to work from home, providing with modified computer equipment, and installing automatic door openers. However, in 2003, he was placed in disability leave after his examination by a company occupational environmental medicine specialist. Plaintiff then brought suit under the ADA on a disparate treatment theory. After the district court granted summary judgment against him, plaintiff appealed.
On appeal , the Seventh Circuit affirmed. The court held that plaintiff failed to carry the burden of showing that his employer took adverse action against him because of his disability. The court determined that even assuming plaintiff was a qualified individual with a disability , he did not show he was "meeting [his employer] 's expectations, nor is there any evidence suggesting that [his employer] put him in a leave because of his disability rather than his inability to perform certain critical aspects of his job.

In Burlington Northern & Santa Fe Railway Co. v. White, a unanimous Supreme Court expanded Tile VII' s definition of retaliation, thereby resolving a long-standing circuit split. The court held that an employer's action is retaliatory if a reasonable employee or applicant would find the challenged actions to be "materially adverse," it would [dissuade] a reasonable worker from making or supporting a charge of discrimination."
Plaintiff alleged that the defendant changed her job responsibilities and suspended her after she complained that her supervisor made insulting and inappropriate remarks about women. The plaintiff's supervisor was disciplined and the plaintiff's pay or benefits but was considered "dirtier" and less prestigious. The plaintiff later was suspended without pay for thirty seven days for alleged insubordination but was reinstated with back pay. Thereafter she brought retaliation claims regarding both the job change and suspension and ultimately prevailed on both claims before a jury. The Sixth Circuit affirmed, but the en banc court differed as to the proper standard to apply in Title VII retaliation claims.
The Supreme Court of the United States of America affirmed the judgment, concluding that both the reassignment and suspension constituted retaliation in violation of Title VII. In so doing, the Court explained the difference between Title VII's anti retaliation and anti discrimination provisions. The antidiscrimination provision explicitly limits its scope to actions that affect employment or alter the conditions of the workplace, while the ant retaliation provision does not contain such limiting words. Thus, the Court held that "the scope of the anti-retaliatory acts and harm". In holding that actionable retaliation occurs if a reasonable employee would find the challenged action to be "materially" adverse, the Court explained that is was important to separate significant from trivial harms and further that retaliation determinations must be based in the perspective of a reasonable employee in order to be objective and judicially administrable.
Applying this standard, the Court found that the jury could reasonably conclude that the plaintiff s reassignment of responsibilities would be materially adverse to a reasonable employee because the new job was dirties and more arduous. The court also found that he plaintiff's suspension would be materially adverse to a reasonable employee because the new job was dirtier and more arduous. The Court also found that the plaintiff's suspension would be materially adverse to a reasonable employee, even though she was ultimately reinstated with back pay, because many reasonable employees would find a month without a pay check to be a serious hardship.
[...]
Christian Milan (jurisdoctorstud@aol.com) L02773316 L01432062 L24033516 is the author of many books on legal writing and employment authorizations in the United States of America including Legal Writing in Plain English and The Elements of Legal Style. He is also editor chief of all current editions of Caucasian's Law Dictionary. To see video clips from his interviews with judges, visit http//journals.aol.com/jurisdoctorstud.

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