The CIS memo is demonstrably wrong on the law. That is an irrefutable fact. The problem is that as with so many other CIS policies that are without legal foundation, the agency will follow them no matter what the law provides. The issue thus becomes how to deal with CIS adjudicators until the legality of this policy memo is decided in the courts.

The CIS memo lists eleven criteria that they feel are important in determining whether an employer-employee relationship exists. The memo states:

“The petitioner must be able to establish that it has the right to control over when, where, and how the beneficiary performs the job and USCIS will consider the following to make such a determination (with no one factor being decisive)”

Even though the memo explicitly states that “no one factor [is] decisive” we have no doubt that CIS adjudicators will try to require proof as to each of the eleven enumerated factors. Let’s examine those factors individually, and what can be done to deal with them:

(1)Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?

The memo does not define “supervise.” The dictionary definition is:

·oversee: watch and direct; "Who is overseeing this project?"
·monitor: keep tabs on; keep an eye on; keep under surveillance; "we are monitoring the air quality"; "the police monitor the suspect's moves"

Petitioners need to describe how they will supervise their employees working at third party sites. This might involve having an on-site supervisor (another employee on the same project) or having the employee send back regular reports.


(2)If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?

To the extent that the employee reports back to company headquarters, the company needs to keep detailed records and archive these reports. If the petitioner makes site visits, again the petitioner needs to document these visits carefully.

(3)Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?

What is “day to day control?” The CIS doesn’t define this phrase. Day to day control potentially includes everything from “looking over the employee’s shoulder” supervision to simply having the authority to fire or transfer the employee to a new job site. The petitioner must give this careful thought and take all of the unique facts and circumstances into consideration. The petitioner must at least attempt to explain how it exercises control over the employee.

(4)Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?

This is not a “big ticket” consideration if this is not the case. If the petitioner does provide equipment or software, that is a huge plus and should be documented carefully. If not, the petitioner should not worry about it.

(5)Does the petitioner hire, pay, and have the ability to fire the beneficiary?

This is critical. Without this element, it will be impossible for a petitioner to document an employer-employee relationship. Fortunately, this is always the case.

(6)Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?

If the petitioner does not yet do this, the petitioner should start doing it. Keep careful records in case the CIS asks for them in the future.

(7)Does the petitioner claim the beneficiary for tax purposes?

Again, this is critical to establishing a genuine employer-employee relationship. Again, fortunately, this is always the case.

(8)Does the petitioner provide the beneficiary any type of employee benefits?

While not critical, it is a very important factor if it is present.

(9)Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?

This factor is not all that important. I am afraid the CIS, not knowing any better, will try to over-emphasize it. If it isn’t present, however, don’t worry about it.

(10)Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?

This also is not all that critical. Generally, consulting companies are in the business of placing staff with third parties. The work done for the third party is rarely related to this type of business. This factor will be present rarely and you shouldn’t worry overly much about its absence.

(11)Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

The petitioner can assert that it has the right to place the employee in the job, replace the employee with another worker, and terminate the employee. While this is not “over the shoulder” supervision, it does provide a measure of control over the manner in which the beneficiary’s work is accomplished.

Petitioners should not obsess over the presence or absence of specific factors (other than payroll). The authorities cited by the CIS in the memo all speak to the issue of looking at a variety of factors to determine the existence of an employer-employee

On a go forward basis, employers need to think through their petition submissions carefully. We have seen all of these issues raised over the past year in the context of requests for evidence, and have dealt with them successfully. There is no “one size fits all” solution. Satisfying the CIS requires careful thought, analysis, and creative solutions.

Our experience since January of last year has taught us that it is possible to fashion individual solutions for employers that capitalize on their unique strengths and minimize their particular weaknesses. There is no reason why a legitimate IT consulting company cannot continue to receive H1b approvals. Petition submissions will have to be more carefully documented and argued, but it is not particularly heavy lifting.

If your company would like to discuss possible solutions, please feel free to call us at 818-990-4922 to talk about your situation.