plates a scenario where the petitioner isa staffing computer consulting compa-ny, and once the H-1B worker is placedat the client site, it no longer reports tothe petitioner for assignments and allassignments are determined by a man-ager at the third-party company. Careshould, therefore, be taken not to mis-represent the nature of the assignmentat the company. Moreover, the petition-er must demonstrate that the positionbeing filled by the H-1B worker at thecompany requires a bachelor’s degree orhigher in a specialty. Here too, counselmust take the utmost precautions to notmisrepresent the minimum require-ments of the position.The USCIS’s fraud detection nationalsecurity division may also pay a visit toensure that the worksites have beenaccurately identified, and these site vis-its may lead to the company. Moreover,the letter counsel provided may also beverified with a surprise call from theState Department when the H-1B work-er applies for a visa at the U.S. consulate.The petitioner must also separatelyattest to the Department of Labor,
, on the labor condition application(LCA) that it is paying at least the pre-vailing wage, and that it has postednotice in two conspicuous places at thephysical location for 10 days where thework is actually performed. The noticemust note that H-1B workers aresought, the occupational classification,the wages offered, the period of employment and the work location.The notice must also invite complaintsfor misrepresentation in the LCA or forother violations.
While the petitioner is solely respon-sible for posting the notice at the physi-cal location, it would behoove counselto cooperate with the posting at thecompany’s site to ensure the contractoris fully compliant with the attestationrequirements.Finally, certain employers who havea large percentage of H-1B workers inthe workforce, known as dependentemployers, must make an additionalattestation that a U.S. worker has notbeen displaced, or there is no intentionto displace one, if the H-1B worker isplaced at a client’s site within 90 daysbefore and 90 days after the placementof the worker at the other employer.
Here too, while the petitioning employ-er is solely responsible for this ‘sec-ondary’ displacement attestation, coun-sel at the client company must ensurethat he or she has provided accurateinformation about any displacement of U.S. workers to the contracting compa-ny. If there has been a displacement, thecontractor, if H-1B dependent, and if the worker is not exempt,
cannotassign the H-1B worker to the project.
Is the Worker SpecializedUnder the L-1B Visa?
The L-1 visa, which allows foreignnational intracompany transferees towork in the U.S. as managers or execu-tives under the L-1A visa, or as special-ized knowledge employees under the L-1B visa, is also worth a passing mention.
L-1B “specialized knowledge” employeeshave also come under close scrutiny inrecent times for alleged misrepresenta-tions of whether they are truly engagingin specialized knowledge activities.If a specialized knowledge employeeis placed at a client company, careshould be taken that the individual iscontinuing to serve is such a capacity.Specialized knowledge includes a personwho has special knowledge of the com-pany product, service, research, equip-ment, techniques, management orother interests and its application ininternational markets, or has anadvanced level of knowledge of process-es and procedures of the company.
While the definition of the term hasgone through varying interpretationsover many years, the rule of thumb isthat if the person is implementing aproduct or application of the contractingcompany, or deploying a methodologythat is unique to that company, the indi-vidual may be involved in appropriateactivities consistent with the L-1B visa. If,on the other hand, this so-called special-ized knowledge employee is involved inroutine coding or software developmentnot pertinent to the product or processesof the contracting company, this shouldbe sounding alarm bells for counsel.Moreover, if the L-1B employee is placedat a third-party worksite, he or she mustbe under the “control and supervision”of the petitioning entity and not the con-tracting company.
Conclusion: The Wal-Mart Example ofIndependent Contractor Liability
The author is cognizant of the factthat an independent contractor shouldnot be liable for the civil or criminalwrongdoing of an independent contrac-tor. At the same time, if counselattempts to be willfully ignorant, orworse still, encourages inappropriate orfraudulent activities, it will not be ashield if the contractor breaks the law.The enforcement action against Wal-Mart, albeit in a different context, pro-vides a sobering example of independentcontractor liability. The Form I-9 employ-ment verification requirement applies todirect employees of an employer.
Onthe other hand, an employer cannot cir-cumvent its obligations by classifying anemployee as an independent contractor.Moreover, even if an individual is trulyan independent contractor, INA Section274A(a)(4) provides that a person orother entity who uses a contract, subcon-tract or similar arrangement to obtainthe labor of an alien in the U.S. knowingthat this person is unauthorized to work,can be sanctioned.Wal-Mart received substantial gov-ernment scrutiny because of janitorialsubcontractor employees working at itslocations, although the enforcementaction culminated in a consent decreeand order in 2005.
Based on the con-