U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification.  The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party work sites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements:  Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).”

In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

Please click on the link below to read USCIS’ answers to some of the frequently asked questions on this issue:

• Questions and answers on the memorandum

The Department of Labor (DOL) has published a Final Rule to amend its regulations regarding the procedural requirements applicable to the E-3 visa category. The E-3 Visa category is available to Australian citizens coming to US to perform services in specialty occupation only i.e. equivalent of H1B. The Final Rule makes changes to the procedure of obtaining a DOL Labor Certification under the E-3 visa category. The final rule will take effect April 11, 2008.

Download advance copy of a DOL final on E-3 Visa LCA Requirements