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Indian H-1B Workers Deported: Interpretation of Employer-Employee Relationship

www.ntv.co.ke The Kenya Anti corruption commission is working with the attorney general’s office to develop rules and regulations that will see individuals involved in economic crimes given amnesty. The anti corruption body also says that it will be working closely with the Truth, Justice and reconciliation Commission that is mandated to investigate economic crimes of between 1963 to 2008, to establish what cases to be given the official pardon. KACC Director PLO Lumumba however adds that investigations of other cases involving key individuals have been slowed down since one of the suspects is said to be sick.

The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shockwaves through the H-1B community.  H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back!  Their crime?  They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. employers, but at a location other than the employer’s office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation.  What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States.  In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation.  Also, H1B employees should be educated on how to answer questions from overbearing government officials.  Pardon me for saying this, a small minority of employers, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy.  Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States.  We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.

Disclaimer: The information in the above article is of a general nature only and should not be taken as legal advice. Always seek professional legal advice before proceeding with your case.

Copyright: The Law Offices of Morley J. Nair, Inc.

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