For those of us in advanced stages of decrepitude who still remember what it was like to practice immigration law before the advent of broadband and universal Web access, the immigration process was much simpler then. Unlike today (with the e-publication of new nonbinding "policies" posted on www.uscis.gov as press releases, FAQs and agency memoranda), immigration rulemaking in the pre-Internet era followed a predictable pattern.
The old INS (the Immigration and Naturalization Service) took a a well-worn path when proposing a new regulation. First the agency would draft a suggested rule and seek approval from the Office of Management and Budget (OMB). Sometimes, OMB would approve the rule without change, and at other times, it would send INS back to the drawing board to retool the rule. Next, after OMB green-lighting, INS would arrange for the proposal's publication in the Federal Register. Then, the public, especially stakeholders with an interest in immigration, would have 30 or 60 days to comment on the suggested change. Finally, the INS reviewed the comments and published a final rule with the announcement of an immediate or future effective date.
Accompanying both the proposed and the final rule would be a section entitled, "Supplementary Information." This is the section, I'll call it the preface, that explained the INS's thinking. The preface to a proposed the rule would tell why the INS thought the change in regulations was necessary, the circumstances in which the rule would and would not apply, and the legal consequences in terms of eligibility for a particular immigration benefit. The preface to the final rule would offer INS's response to the public's comments, make some changes after the public had road-tested the concept, while rejecting others, and offer additional, more definitive legal analysis and agency interpretations.
Immigration lawyers loved these prefaces, even though they never made it into the Code of Federal Regulations, because a preface could be cited in future situations whenever a new adjudicator tried to claim that the text of a regulation meant something other than that which the old INS had explained in the Supplementary Information. The prefaces therefore kept everyone honest. Moreover, pre-screening by OMB meant that an independent set of eyes within the White House took pains to be sure that the proposal made sense and followed statutes and executive orders on proper rulemaking procedures. The system worked.
In the 21st Century, however, everything (including the release of new immigration "rules") happens at Internet speed. While we all love our "app for this" and "app for that," too much digitial sharing, as Jaron Lanier (the early online evangelist who coined the term "virtual reality") warns in his new "manifesto" (You Are Not a Gadget), can create a "global mush."
The global mush is extra thick when U.S. Citizenship and Immigration Services (USCIS) pours out new changes on its home page. Case in point: USCIS Headquarters January 8, 2010 memorandum, a porridge of new and indigestible pronouncements entitled "Determining Employer-Employee Relationships for Adjudication of H-1B Petitions, Including Third-Party Site Placements." In true shrink-wrap-software style, the memo comes complete with its own FAQ.
The memo and FAQ spell out how USCIS immigration officers at the Regional Service Centers, from this day forward, are permitted to decide, in a variety of fact patterns, whether a prospective H-1B worker will be considered legitimately "employed" by the enterprise petitioning for his or her services. To its credit, USCIS acknowledges that the touchstone for approval is that the petitioner will have the "right to control" over "when, where, and how" the H-1B nonimmigrant performs the work, even if there is no proof that actual control of the person's work will occur. This right to control, USCIS notes, is often difficult to recognize in the modern world of work, where vendor personnel and consultants, who are paid by a contractor, render services that look like "work" at various customer worksites. That's why the memo authorizes adjudicators to ask for an array of contractual paperwork.
The enterprise must also establish that the "right to control," according to USCIS, "will continue to exist throughout the duration of the [H-1B worker's] employment term with the petitioner." The "throughout the duration" requirement will be shown by the existence of a contract with a specified term. Thus, if the contract runs for merely a year, USCIS reasons, the agency will approve the H-1B petition only for one year (ironically, all the better for cash-strapped USCIS to collect more user fees when the time for H-1B petition extension arrives). After all, USCIS explains, its H-1B regulations require submission of an itinerary if the H-1B nonimmigrant will work at more than one job site, especially at a site neither owned nor controlled by the H-1B petitioner.
USCIS's allegiance to the "right to control" versus "actual control" distinction lasts no longer, however, than the twinkle in a digital avatar's eye. By Page 6, Footnote 9, of its memo, USCIS announces that "an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him [sic] or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite 'control.'" What kind of control? The right to control? Or, the actual exercise of control? USCIS fudges and doesn't say. Even more confusingly, USCIS admits in the same footnote that "a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner."
Wait a minute. If a sole owner of a company can be "employed" by that company and if the company is a separate legal entity from its sole owner, then how is it that the "beneficiary [the H-1B worker, a natural person] . . . is also the petitioner [the company, a legal entity that is distinct from its living owner]"? Apparently, to USCIS, the sole owner of a company is also the company, and the company is also the sole owner, even though they are "separate," and the stock-owning human can be "employed" by the legal entity, but not for H-1B purposes, even if s/he has the bylaw-given "right to control" the way the H-1B human does his job. In short, Footnote 9 is unadulterated gobbledygook.
Harkening back to immigration's bygone era, this blogging geezer asserts that the OMB of old would never have allowed such mush to splatter the pages of the Federal Register. Perhaps even the current OMB, notwithstanding the celebrated meanderings of its current director, would likewise reject the turgid spillage of Footnote 9. Why am I so sure? Because INS -- in 1998 -- published a proposed rule covering the very same subject. As the late William F. Buckley, in one of his less articulate moments, might have said: "You Could Look It Up." Check out the INS preface at 63 Federal Register 30419 (June 4, 1998):
Since promulgation of [the H-1B] regulation [requiring submission of an itinerary if the H-1B worker will perform services in more than one location] . . . many industries in the United States, such as the health care and computer consulting industries, have begun to rely more frequently on the use of contract workers. It has been the experience of the Service that many bona fide businesses which provide contract workers to certain industries under the H–1B classification have experienced difficulty in providing complete and detailed itineraries due to the unique employment practices of such industries. For example, companies which are in the business of contracting out physical therapists or computer professionals often get requests from customers to fill a position with as little as 1 day advance notice. Clearly an H–1B petitioner in this situation could not know of all particular contract jobs at the time that it first files the H–1B petition with the Service. As a result, many such bona fide employment contractors do not know all of the locations where a contract worker will be employed at the time the Form I–129, Petition for a Nonimmigrant Worker, is initially filed.
Moreover, some employers who use the H–1B classification may have a legitimate, but unforeseeable, need to transfer their employees on short notice from one work site to another within the organization, such as from the employer’s Los Angeles office to its New York office. Under the current regulation, however, such an employer is required to submit with its petition a complete itinerary listing all of the locations where the contract workers will be employed. The regulation as now written, therefore, does not fully reflect current legitimate business practices.
In response to these problems, the Service now proposes to amend its regulations at 8 CFR 214.2(h)(2)(i)(B) and at 8 CFR 214.2(h)(2)(i)(F) to allow certain petitioners to submit a general statement describing the locations where the alien is to be employed, thereby eliminating the necessity of submitting a complete itinerary. A complete itinerary must be submitted only in those instances where the employer is aware of the actual itinerary or where the petitioner is an agent that does not actually employ the beneficiary but merely represents the alien and the alien’s employer. In those instances where the employer does not yet know the alien’s complete itinerary at the time the petition is filed, the employer must submit, in lieu of a complete itinerary, a list of the places where it knows the beneficiary will definitely be employed, together with a description of the alien’s job duties at those locations. In addition, the employer must submit, to the extent possible, a list describing the alien’s possible places of employment and the duties which the alien would perform at such locations. The employer may also be asked to submit a letter with the petition describing its past hiring practices, including a list of past places where it has employed similarly situated persons. The letter must describe the employer’s tentative plans to use the beneficiary in an H–1B capacity in the future. However, the absence of a past hiring practice is not a bar to the approval of the petition.
So in the good old days, INS didn't require a contract that would run for as long as the maximum period of H-1B petition validity (then as now, for three years). It didn't make an elaborate fuss over the employer-employee relationship. It honored Matter of Aphrodite's holding that a corporation is distinct from its sole shareholder and that the former could receive approval of an H-1B petition on behalf of the latter. Curiously, however, for reasons never explained, INS never promulgated a final rule on the subject, even though its well-reasoned views on the sufficiency of evidence in H-1B cases are forthrightly and clearly stated in the 1998 proposed rule.
USCIS apparently didn't want to follow the prescribed path by picking up where the 1998 proposal left off, explaining what had changed in business practices or immigration laws, and then proceeding with the OMB-proposed-rule/final-rule approach. Instead, we get tainted mush, delivered electronically, with no chance for stakeholder or stockholder comment.
Why have the "legitimate business practices" of 1998 become illegitimate, or at least highly suspect and requiring reams of long-term contractual proof, in 2010. USCIS's January 8 memo and companion FAQ never say. We at least can hope that the agency will tweet us its answer on Twitter.