Affiliate: USCIS has adopted the definition for affiliate provided in 8 CFR 214.2(l)(ii)(L) (1) and (2).The specified regulation defines affiliate as:
"1) One of two subsidiaries both of which are owned and controlled by the same parent or individual, or
2) One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity..."
Subsidiary: USCIS has adopted the definition for subsidiary as provided in 8 CFR 214.2(l)(ii)(K). The regulation defines subsidiary as:
"a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.”
Based on this definition, a H-1B petitioners will have to count the FTE employees of the petitioner and FTE employees of any other entities covered under the definition above for calculating the appropriate ACWIA fee. However, the memo specifically excludes the employees of the petitioning employer's parent company.
Please contact Sikal & Associates for additional information and clarifications on the impact of this regulations.