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Bloggings On Nurse And Allied Health Immigration

by Christopher T. Musillo

Editor's note: Here are the latest entries from Chris Musillo's blog

March 29, 2010

- Co-employer. The USCIS seems to be taking the position that it must choose the "best employer" (either Staffing Co. or Facility). This is not how the law is to be applied in this area. Instead, the USCIS is only to analyze and see if the Petitioner has the right to control. Multiple parties (both Staffing Co. and Facility) can have a right to control. This is the legal foundation behind the co-employer doctrine, which has a long basis in law. Indeed, the DOL's own regulations contemplate co-employer doctrine in the FMLA regulations. See, e.g. 29 CFR 825.16.

- Burden of Proof. The Service has a policy on burden of proof. The policy is this: If the petitioner submits relevant, probative, and credible evidence that is more likely than not to be true, the USCIS must approve the case. All too often USCIS officers are not applying this standard or just paying lip-service to it.

- Expansion of the Neufeld Memo. There is also concern that this Memo is going to serve as the basis to be expanded to I-140's, etc. USCIS didn't even side-skirt the issue. Ms. Bacon implied that the USCIS will look to expand the logic behind the Memo in future Memos.