Angelo Paparelli Published in New York Law Journal
“New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms”

Angelo Paparelli co-authored the article, “New USCIS Policy Clips Entrepreneurs, Consultants and Staffing Firms,” which was published on February 24, 2010 in the New York Law Journal. The article discusses the recent U.S. Citizenship and Immigration Services (USCIS) memorandum that announces a new set of demanding and burdensome requirements that an employer must prove to the agency’s satisfaction. Petitioning businesses will now have to prove a valid employer-employee relationship with the foreign workers they propose to hire.

According to their article, the memorandum claims to provide a principled legal analysis of the requirement under the H-1B visa category (reserved for “specialty-occupation” workers) to demonstrate an employer-employee relationship between the petitioning entity and the sponsored foreign citizen. The authors points out that the practical impact of the memorandum, however, will probably not be limited to the H-1B visa category. Based on the recent decisions of the USCIS Administrative Appeals Office (AAO), the legal rationale supporting the memorandum has been extended to other employment-based immigrant and nonimmigrant classifications. They explained that if allowed to stand, the memorandum and AAO decisions will frustrate businesses in the consulting and staffing industries (and enterprises they serve) as they try to achieve legitimate commercial objectives.

The authors point out that the diversity and intensity of adverse impact caused by the memorandum and similar AAO decisions are alarming. The harshest effects will be felt by foreign entrepreneurs who hold majority or greater ownership of a U.S. based corporate entity and temporary and permanent staffing businesses. These classes, in most instances, will receive USCIS denials of their petitions requesting employment-based immigration benefits on the claim by USCIS that there is insufficient proof of an employer-employee relationship between the petitioner and the proposed H-1B worker.

The authors further explain that unless the USCIS is forced to reverse course by the federal courts (a possibility), or by higher authorities, H-1B petitioners in these job-creating fields have little recourse except to try nonetheless to thrive despite the clipping they are likely to endure.