Reporting Manager

[h1extension]

My employer is the direct vendor for my client. I report to work every day at my client site. my client managaer allocates the work and supervises that same. so will this cause any problem for stamping?

[hmaster]

Well, yes and no - it depends upon how you can explain that sill you are controlled by your employer / employer supervisor

[krisc2499]

h1extension,

Practically what you siad is right. Client manager allocates work for you. But if we are in H1 we have to maintain Employer-Employee relationship. In order to maintain that your work should be assigned by your employer and ultimate control on you should be with employer. Even though your work is assigned by client manager you should never say that.

[JoeF]

h1extension,

Practically what you siad is right. Client manager allocates work for you. But if we are in H1 we have to maintain Employer-Employee relationship. In order to maintain that your work should be assigned by your employer and ultimate control on you should be with employer. Even though your work is assigned by client manager you should never say that.

He absolutely has to be truthful. Lying about this could result in a lifelong ban.

It is easy to check this, just a call to the client...

Absolutely never never never lie to an immigration official.

[h1bxplorer]

He absolutely has to be truthful. Lying about this could result in a lifelong ban.

It is easy to check this, just a call to the client...

Absolutely never never never lie to an immigration official.

Hi JoeF,

My heart says.. don't lie to the VO..just tell that the client manager assigns you the work and you report to your employer manager every weekend by sending the status report in detail so that my manager at my employer company knows what I am really doing at client location.. (sending the status report..I do every weekend). However, I always have a question in the back of my mind... Does this make the VO think that my employer does not have control on me? Work not being assigned by the employer a violation of employer-employee relatioship? If so, a lot of my friends who work for big american companies which are preferred vendors for various clients across the US also get their work assigned by client manager only, not their reporting manager at their employer company. I would say then EVC people are scape goats for this 2010 memorandum for E-E relationsip.

I have tried reading the memorandum several times but could not rally understand what the VOs are looking to verify the E-E relationship. Based on your posts in the forum, I feel you are an expert in immigration matters. Would it be possible for you to spare some of your time and explain the E-E relationship criteria in a more easy terms? This would be a great help for people like me who have been clicking on the F5 button to see any new updates posted in the forum everyday.

Thanks in advance

Thanks

h1bxplorer

[JoeF]

Scapegoats or not, the memo was the result of significant abuse of the H1 rules.

So, blame the people who abused the system.

EVC makes no economic sense. It pretty much only exists in the IT industry and is essentially abuse of the system. You could get hired by the "preferred vendor", for example.

[H1BNIV2008]

EE relationship requires you to maintain and prove the following:

1. Your employer has the sole right to hire, fire, evaluate and determine compensation for its employees - your vendors or clients have no input or influence in this process,

2. Your employer has the sole authority to assign you work and provide you instruments and tools required to perform your work assignments - vendors or clients have no input or influence in assigning you work.

3. Your employer pays your compensation, taxes and all insurance, retirement and vacation benefits,

4. Your employer pays all social security taxes and claims all its employees for tax purposes.

If you work at a client location, you might be required to prove that your employer assigns and supervises your work on a day to day basis - not your client. Towards this, its ok if your client hires your firm for a specific project - as long as any H1-B workers on that project are managed and supervised directly by their employer (think more than just weekend status reports). If you are maintaining the above and can prove it/speak to it truthfully, you should have no problem with your interview. If you cannot, you're probably going to run into issues.

In fairness, this is certainly aimed at curbing unscrupulous consulting/contracting and body shopping practices. There's been plenty of malpractice and mis-use of H1-B visas recently, especially EVC - which has made the overall process harder and more regulated for firms (who employ such workers), clients (who rely on such workers because they're relatively cheaper and light on paperwork) and workers themselves! As with any rule and its enforcement, it's hardly perfect and inconsistently enforced - especially across different locations. Also interpretations of the rule differ across locations and officers (think Newark CBP fiasco in early 2010 for an extreme example of interpretation).

If the USCIS, Consular or CBP Officials start to believe applicants are not being truthful or honest at interviews, the process is bound to get even harder for everyone - imagine every applicant (or every Indian applicant) having to go through mandatory 2-3-4 weeks of admin/consular processing and/or additional documentation. I hope everyone is mindful, not only of individual consequences, but also broader consequences and repercussions, while making individual decisions.

[h1bxplorer]

2. Your employer has the sole authority to assign you work and provide you instruments and tools required to perform your work assignments - vendors or clients have no input or influence in assigning you work.

If you work at a client location, you might be required to prove that your employer assigns and supervises your work on a day to day basis - not your client. Towards this, its ok if your client hires your firm for a specific project - as long as any H1-B workers on that project are managed and supervised directly by their employer (think more than just weekend status reports).

The above points are not applicable to even for the big American prime vendor companies and for Indian based corporate companies handling some projects (may not be all) at the client locations. Most of American based prime vendor companies place their employees at client location and never even think about this EMPLOYER-EMPLOYEE relationship. Whether one is ready to ACCEPT it OR NOT..this the FACT. I believe you are aware of the IT industry operations... Client always have a team of full time employees hired for performing certain tasks to deliver different projects they undertake based on the kind of industry they are in. They hire contractors (consultants), if they think the full time employees they have do not have enough skills needed for the specific project they started (going to start) or they think they cannot go for a full time employee for the project which is going to last for half a year or so... In this process client hires a contractor for a duration of half year and makes him/her as part of their team. In this scenario, how can someone expect that the hired contractor's employer manager assign him/her the daily tasks? This means that the client should entertain the contractor's employer manager to participate in all the meetings and discussions and let him allocate the work to his/her employee and client manager assigns the work to the rest of the team???? Absolute hypocrisy..... I agree that the H1B is abused..... Why did this 2010 memorandum come into picture after recession.. why not during Y2K problem or during 2002-2006 period when the market was crazy where software consultants were paid $250/hr or more? This H1B abuse was there most of the time as the EVC model exists for quite sometime... As far as I understood most of this is happening because locals started thinking that they are losing jobs because of the non-immigrant workers and govt also has the same notion about this.... This is just an indirect signal to all the foreign nationals coming to this country that ... ""guys your necessity is not at the peak level for US.. we will call you back when we are in need of you, till that time, stay back in your country..""

It is easy to say the rules you mentioned in your writeup, however, in a real word scenarios, they cannot be applied in a lot of situations..not only in IT industry....other industries like marketing, fashion designing, construction works etc....

Thanks

h1bxplorer

[JoeF]

The above points are not applicable to even for the big American prime vendor companies

And you know that how? Are you in charge of these "big American prime vendor companies"???

If you like it or not, the Employer-Employee relationship is a valid rule.

And it came about because of abuse of the H1 by shady consulting companies.

[Ottawa221]

The above points are not applicable to even for the big American prime vendor companies and for Indian based corporate companies handling some projects (may not be all) at the client locations. Most of American based prime vendor companies place their employees at client location and never even think about this EMPLOYER-EMPLOYEE relationship. Whether one is ready to ACCEPT it OR NOT..this the FACT. I believe you are aware of the IT industry operations... Client always have a team of full time employees hired for performing certain tasks to deliver different projects they undertake based on the kind of industry they are in. They hire contractors (consultants), if they think the full time employees they have do not have enough skills needed for the specific project they started (going to start) or they think they cannot go for a full time employee for the project which is going to last for half a year or so... In this process client hires a contractor for a duration of half year and makes him/her as part of their team. In this scenario, how can someone expect that the hired contractor's employer manager assign him/her the daily tasks? This means that the client should entertain the contractor's employer manager to participate in all the meetings and discussions and let him allocate the work to his/her employee and client manager assigns the work to the rest of the team???? Absolute hypocrisy..... I agree that the H1B is abused..... Why did this 2010 memorandum come into picture after recession.. why not during Y2K problem or during 2002-2006 period when the market was crazy where software consultants were paid $250/hr or more? This H1B abuse was there most of the time as the EVC model exists for quite sometime... As far as I understood most of this is happening because locals started thinking that they are losing jobs because of the non-immigrant workers and govt also has the same notion about this.... This is just an indirect signal to all the foreign nationals coming to this country that ... ""guys your necessity is not at the peak level for US.. we will call you back when we are in need of you, till that time, stay back in your country..""

It is easy to say the rules you mentioned in your writeup, however, in a real word scenarios, they cannot be applied in a lot of situations..not only in IT industry....other industries like marketing, fashion designing, construction works etc....

Thanks

h1bxplorer

Evenually the question remains the same- USCIS is the agency which issues H1 (797). It is taking 5-6 months for them to process the visa- why don't they make sure they EE relationship during this time. If you think about it - the Consulates are challenging the document which is issued by a federal agency. No one is making 797 at their homes. They should not be approving these petiotions. If there is a problem with locals not getting the jobs- "Why not reduce the H1 quota from 65000 to 30000?

All the stuff which is going around does not make sense.

[h1bxplorer]

And you know that how? Are you in charge of these "big American prime vendor companies"???

If you like it or not, the Employer-Employee relationship is a valid rule.

And it came about because of abuse of the H1 by shady consulting companies.

Because, I worked with some of these companies as my prime vendors and their direct employees were in the same project where I was and they also get work assigned by the client manager... not their employer manager. You don't need to be an incharge of the american prime vednor comapnies to know the consulting stuff which Amrcian Prime vendor companies do.. It is a common phenomena in IT consulting.... If you work in IT industry and you are in consulting world for a while, you will understand most of the stuff without visiting all the prime vendor comapny offices...

I understand and agree the EMPLOYER - EMPLOYEE relationship stuff..but my question is why everyone is pointing out only EVC model not EC model? EC model also cannot really maintain the EE relationship in the example I quoted in my post.

Thanks

h1bxplorer

[giri26]

Evenually the question remains the same- USCIS is the agency which issues H1 (797). It is taking 5-6 months for them to process the visa- why don't they make sure they EE relationship during this time. If you think about it - the Consulates are challenging the document which is issued by a federal agency. No one is making 797 at their homes. They should not be approving these petiotions. If there is a problem with locals not getting the jobs- "Why not reduce the H1 quota from 65000 to 30000?

All the stuff which is going around does not make sense.

Thats true, these applications should be filtered at the approval level itself, rather than at the stamping. It does not make sense as if someone was able to prove EE while getting their petition approved they should be able to prove it during H1B stamping too. I dont see any reason why the VO should feel different than the person approving the petition. This is just a money making strategy by USCIS. The approve the H1 petition and take $150 for the visa application and then reject them later. This way they make more money thats about it. The entire process dont make sense.

USCIS approves -> VO decides there is no evidence of EE -> 221 g -> after submitting the relevant docs the candidate gets stamped -> the officer at the port of entry can still send you back -------Does it make sense at all? Nope, not to me. So basically the country does not trust their own departments.

[catx]

JoeF and others, thank you for the thoughtful discussion on this topic. Something that is needed and all too often sorely missing from the dialogue.

For perspective, I am on an H-1B visa in EB3-ROW with approved I-140 (patiently waiting for an available permanent residency visa).

I work for a U.S. specialty engineering software company in professional services, and have been at a client site (major oil & gas company) for an extended engagement. Accordingly, I am technically in the EC model (no vendor(s) or other middle men in the contracting relationship). My work focuses on applying my engineering expertise and experience (almost 20 years) to the business process related to use of my company’s software. While I do some database and system administration, business analysis, and even development, these commodity IT tasks are only undertaken when needed to support my company’s software. My contact rate is the highest tier paid by my client and my salary is well above the prevailing wage requirements.

While in an EC model as a resident engineer at a client site, I have an office at my company location, work directly with my company management and colleagues on daily basis, have a computer, cell phone, etc. from my employer, I am paid directly by my employer, receive employee health care benefits, vacation, 401K matching, profit sharing as company stock, and other benefits directly from my employer. So while my client may have significant input into the work that they need done, there is no ambiguity that I am an employee of my employer.

The H-1B visa is, and has always been, for companies to hire direct employees from outside the U.S. to fulfill specialty professional positions -- period. It is not, and has never been, intended for placing and moving around what are effectively independent consultants from project to project and client to client (e.g. under the EV…C model). Further exasperating the situation are the known abuses and fraud (recently the New York law firm, and as just alleged LTI). (Yes, “guys your necessity is not at the peak level for US. We will call you back when we are in need of you, till that time, stay back in your country” is completely valid as an immigration policy. H-1B (and L-1) visas are discretionary at the will of the U.S. government, not just a procedure to go through or right.)

Companies and individuals who exploit H-1B (and L-1) visas and arguably more egregious the permanent residency process are endangering legitimate use and negatively impacting the chance for real solutions to the employment immigration backlog.

[Rocky saha]

What about economic conditions & un-employment rate playing a role ?

Think its always demand & supply that trigger an events.

Suppose if we get a economic boost & demand like Y2K times, (won't big companies start hiring/lobbying to fulfil the requirement) ?

[h1bxplorer]

The H-1B visa is, and has always been, for companies to hire direct employees from outside the U.S. to fulfill specialty professional positions -- period. It is not, and has never been, intended for placing and moving around what are effectively independent consultants from project to project and client to client (e.g. under the EV…C model).

If it is not... why USCIS has been approving H1B petitions of the companies which are in to this business? I am again stressing my point.. This moving of independent consultants is not always with companies in EV...C model, it is a very well know fact that the companies in EC model (not desi companies...American prime vendor companies) also do placing and moving of independent consultants from project to project and client to client (look at the thread starter). I am not sure if you guys have never come across any such situations in your career or you just don't want to accept it. If the rule is rule and then make the rule for all.... NO HYPOCRISY PLEASE. If this is agreed and applied to all, we can discuss this matter for hours together, otherwise, there is no point in quoting the rules which can be bent as and when necessary and quote as strict when you think/feel it can be quoted as strict. I have seen projects where companies like IBM sends one of its SMEs to client location and ask them to help the client in finishing their project (project can be 3 months, 6 months or more..) and during that time the IBM consultant does not get his work assigned from IBM's manager, client manager assigns him the work because IBM SME is part of the larger client team now and he is supposed to perform his tasks as per the project priority and client manager's project plan.... Where is the so called EMPLOYER-EMPLOYEE relationship maintained here? Isn't this unfair? If someone argues that the rule can be bent here, then people are always ready to bend rules wherever possible. This is common across the globe..if not, no country needs a constitution and laws, bla bla bla...

Thanks

h1bxplorer

[JoeF]

Because, I worked with some of these companies as my prime vendors

And that makes you an authoprity on this issue???

The law is what matters.

The employer-employee relationship memo is valid, and has to be followed. Period. End of story.

[JoeF]

What about economic conditions & un-employment rate playing a role ?

Why would it?

A company that needs people could just hire Americans, for example. Economic conditions do not justify breaking the H1 rules. The employer-employee relationship is a requirement for an H1 nowadays.

Think its always demand & supply that trigger an events.

Within the rules of the law. The law requires for people on H1 to have an employer-employee relationship. Plain and simple.

Suppose if we get a economic boost & demand like Y2K times, (won't big companies start hiring/lobbying to fulfil the requirement) ?

What may or may not happen in some point in the future is not relevant at this time.

And in fact, the lobbying in the late 90ies that resulted in an H1 increase for a few years is to a significant extent to blame for the current EB delays, because there was no corresponding increase in the GC quotas.

That's the problem of piecemeal legislation: unintended consequences.

[JoeF]

Thats true, these applications should be filtered at the approval level itself, rather than at the stamping. It does not make sense as if someone was able to prove EE while getting their petition approved they should be able to prove it during H1B stamping too. I dont see any reason why the VO should feel different than the person approving the petition. This is just a money making strategy by USCIS. The approve the H1 petition and take $150 for the visa application and then reject them later. This way they make more money thats about it. The entire process dont make sense.

You know, if you want to display your paranoia, it would help if you would actually know a little bit about the process.

The consulates have absolutely nothing to do with USCIS. The consulates are part of the Department of State.

I have found that it is always the people uneducated about things who fall for weird conspiracy theories. There are no black helicopters.

[giri26]

You know, if you want to display your paranoia, it would help if you would actually know a little bit about the process.

The consulates have absolutely nothing to do with USCIS. The consulates are part of the Department of State.

I have found that it is always the people uneducated about things who fall for weird conspiracy theories. There are no black helicopters.

Okay I may not be knowledgable like yourself with the entire process but help me understand one thing. Below is my timeline:

I came here in 2003 on F1

Converted to H1 in 2005

Stamped in 2007

Wife's stamping of H4 in 2008

First extension in 2008

I140 approved in 2008

Wifes visa stamping again in 2009

My visa stamping (H1B) in 2010

Visa extension (7th year) 2011 (Full employer-employee relation proved in the extension paper work, I have the entire 200 page petition with me)

Have to go for stamping in 2012 again, since I am leaving the country.

All the while I have been working in EC model with the same employer. Haven't changed the employer, have been working for the same client since my last 2 extensions and stamping. How many checks do I have to go through to prove this? How many times do they need me to go through this stress every time I leave this country? How does it make sense to approve petitions and allow people to stay in US as long as they dont leave the country and only penalise people who have to go back due to some personal reasons. How much change do they expect in my case while I am working for the same employer and client in the same job since my last stamping in 2010? What are they trying to prove? I think USCIS should take more responsibility and deny applications which are shady, instead of approving them and causing further trouble.

Just think about it and it will not make sense. I am just fed up. You can say leave the country if you want but it is not that easy.

[JoeF]

Well, you should be mad at the people who have abused the H1. The employer-employee relationship memo only came about because there was a lot of abuse.

That memo may have resulted in collateral damage, which could have been avoided if there hadn't been so many people who had no problem with abusing the system.

Speak out against the abuse. The abuse hurts everybody.

[H1BNIV2008]

So, regarding the USCIS processing and adjudication of applications - there's definitely fair bit of diligence in that process to ensure employer-employee relationships exist. In addition, the number of workplace audits has drastically increased (all H1-B employers - not just H1-B dependent employers).

http://www.***********************

Ultimately, as JoeF states, there's been a significant abuse of this program - specifically by body shops and Indian consulting firms. The original intent of the program was to allow American firms to fill specialty occupation positions with temporary workers - and giving specialty workers a path to lawful permanent residence through employment. It was not intended to facilitate cheap labour or body shopping in the IT industry.

There's many forms of consulting that falls within the boundaries of EE relationship - but certainly not consulting roles with a vendor in between. Regarding why these visas were approved by the USCIS in the first place, they were either already approved before release of the memo, or approved based on information submitted in the petition. In either case, these applications then run into trouble when the applicant is not able to back up statements in the petition at the consulate.

At the same time, none of these laws are not comprehensive or perfect - they are far from that. There doesn't seem to be political appetite or will on either side of the isle these days to achieve comprehensive reform (not just of immigration, but also education and employment policies) - rather we have a piecemeal approach of putting in odds and ends fixes to immediate issues which usually have longer term unintended consequences. Overall, both legal and illegal immigration laws are in grave need of reform. Don't see the situation or rhetoric changing anytime soon either - which is unfortunate.

[giri26]

Well, you should be mad at the people who have abused the H1. The employer-employee relationship memo only came about because there was a lot of abuse.

That memo may have resulted in collateral damage, which could have been avoided if there hadn't been so many people who had no problem with abusing the system.

Speak out against the abuse. The abuse hurts everybody.

I surely agree to that. I am very much against the companies that abuse the system. I have seen one very close while I was searching for jobs. The issue for me is that eventhough the EE relationship is a great initiative it is not a consistent implementation by the USCIS or the visa officers. The proof of Employee-Employer relationship is a must for H1B petition approvals nowadays. The documentation required to prove that is consistent too but how come USCIS accepts the proof and aproves the petition while the visa offices deems the same proof as not enough? If the document was shady initialy then shouldn't the USCIS deny the petition in the first place? I am just saying that it is great scrutinizing applications to nab these fraud companies but only thing I am saying is that bring some consistancy in the process so that these things can be less stressfull for everyone. I look at the I129 submitted by my company and it is as extensive as it gets and is about 200 pages with so much of information which proves the EE and my approval was extremely quick. Now I have to take the same documentation for H1B stamping and the Visa officer might not like it and ask me for more documentation, does it make sense?