Immigration note from my attorney

[kingmakers]

See the below note from my Attorney:

Rumors are flying about the current state of the H-1B program. Some have speculated that USCIS is currently not approving H-1B petitions at all right now, others have asked if the H-1B cap will open this year. While there are new challenges for filing an H-1B petition, these rumors are not true. 

The source of the rumors stem from at least two possible sources:

H-1B Amendment to the Stimulus Package: On Tuesday of this week, President Obama signed into law the much-debated economic stimulus package. Part of that legislation addresses some very limited restrictions on the H-1B program. Specifically:

    * Any employer that has received TARP (Troubled Assets Relief Program) funding cannot hire an H-1B employee, unless

    * The employer has met certain requirements, including advertising the position and hiring any US worker who is equally or better qualified for the job.

    * This limitation is in place for two years only.

What does this mean for you? If you are an employer, and your company did not receive TARP funding, you do NOT have to meet this requirement to hire H-1B employees.

Vision Systems Group: The US Attorney’s Office has worked with other US government agencies to arrest a number of individuals in connection with H-1B fraud. The government officials claim that the company filed H-1B petitions for positions that did not exist. The government officials also claim that the company listed the work location for some H-1B workers as Iowa, rather than the actual work location, in order to have to avoid paying the higher prevailing wage at the actual worksite.

What does this mean for you? This case involves (allegations of) large-scale and systematic immigration and mail fraud. If you are an employer, and if you are not involved in fraudulent schemes, you do not need to worry about being arrested. The individuals in this case were not arrested because of technical H-1B violations (like not posting properly, for example). Rather, the government believes that the persons arrested intended to file fraudulent petitions for monetary benefit.

If you have specific questions or concerns about how these events may affect you or your business, please do not hesitate to contact us.

Best Practices: Avoiding Common RFE Issues

Immigration attorneys have noticed an increase in the issuance of RFEs for H-1B petitions from USCIS. The enhanced sensitivity to the H-1B classification may be due to a number of external factors which have led to increased public inspection of the agency, in general, and the H-1B category, specifically.  These RFEs may be issued to encounter H-1B fraud and to insure USCIS compliance.  The potential abuse of the H-1B category remains a matter of priority for USCIS, as indicated in the September 2008, H-1B Benefit Fraud & Compliance Assessment.  USCIS prohibits the placement of H-1B employees at the worksite of a third party employer where the third party employer (and not the petitioning employer) controls, supervises and is responsible for the worker and the employment. USCIS is suspicious where the petitioning entity is not the actual employer but still pays the beneficiary’s salary and assigns him/her to third party clients.

            Issuance of a RFE is discretionary and not strongly recommended when the evidence raises underlying questions regarding eligibility or does not fully establish eligibility.  A 2005 USCIS memorandum by William Yates[1] provides guidance to adjudicators in certain instances when adjudicators unnecessarily issue a RFE prior to making a final decision on a petition or application.  It is unacceptable to issue a RFE for a broad range of evidence, which overburdens customers, over-documents the file, and wastes examination resources through the review of unnecessary, duplicative, or irrelevant documents.  It guides the adjudicator not to “dump” the entire template in a RFE, but instead to examine the record for what is missing and sending the RFE using the relevant portion from the template.  In many cases, adjudicators issue RFEs requesting documents which are voluminous and over burdensome.  The adjudicator may request Quarterly tax returns for the last four quarters, federal tax returns for the last two years, and W2s and W3s the petitioner has issued to employees for the last two years which may have already been submitted with the initial petition.  By knowing in advance the common issues raised in an H-1B RFE, an attorney is assisted in preparing an approvable case at the outset and avoid the delay and expense of an RFE.

What are the beneficiary' s proposed duties and the specialty work?

Perhaps the most frequent request in an H-1B RFE is for the petitioner to explain, in more detail than initially provided, both the beneficiary' s proposed duties and the specialty work which is to be performed by the beneficiary.  This RFE request can be avoided by carefully drafting the petitioner's letter of support with sufficient detail about the beneficiary' s duties to clearly explain how the beneficiary qualifies for the specialty occupation classification when specifying their basic occupational job description.

What percentage of time will the H-1B beneficiary spend on enumerated duties?

A related RFE request is for the percentage of time the beneficiary spends or will spend on each of the enumerated duties. Such a requirement is not specifically stated in any regulation, precedent decision, or guidance memo on the subject of specialty occupation.  However, this information will assist the adjudicator in making their decision by clarifying which are the most important duties the beneficiary will perform and help to gauge more accurately whether the beneficiary will indeed be primarily performing duties that can be classified as specialty work.  The initial support letter should include the percentage assigned to the duties to avoid the possibility of a later request.  An interrelated request is to provide an organizational chart for the petitioner’s office.  This chart should specifically identify the petitioner’s supervisors and let the adjudicator know whether the H-1B beneficiary will be performing non-qualifying duties or not.

For whom will the H-1B beneficiary directly perform the specialty employment?

Another request concerns for whom the H-1B will directly perform the specialty employment.  The RFE may request documentation of the contractual agreements, statements of work, work orders, service agreements, and/or letters from authorized officials of the ultimate client companies where the work will be performed, that provide a comprehensive description of the beneficiary’s proposed duties. In addition to the contractual agreements and work orders, USCIS frequently requests a description of the conditions of employment, such as contracts or letters from authorized officials of the ultimate client company, listing salary or wages paid, hours worked, benefits and a brief description of who will supervise the beneficiary and their duties.  This RFE request can be avoided by providing the above mentioned documentation for the specialty occupation work with the actual client-company where the work will ultimately be performed.  Submitting a copy of the contract between the petitioner and client with whom the beneficiary will be performing services along with the work order, specifically naming the H-1B beneficiary and stating what project he/she will be working on and his/her duties should this type of RFE request.  If the H-1B beneficiary is then being placed at a third party site, the petitioner can submit a letter from the ultimate client stating the duties and responsibilities of the H-1B recipient.  Furthermore, if the beneficiary is at a third party site, provide a letter from the H-1B recipient’s supervisor stating that even though the beneficiary is ultimately assigned at a third party, the petitioner is responsible over the employment at the third party and is the one who is in charge of the beneficiary in terms of benefit plan, approving vacation time, employment review and reprimands and has ultimate control and supervision of the H-1B beneficiary.

Where will the H-1B beneficiary perform the specialty work?

An additional common request concerns where the H-1B beneficiary will perform the specialty work.  The RFE may request the lease agreement for the petitioner’s headquarters, specifically requesting that the lease be a notarized copy and expressly state the square footage and monthly payment.  Furthermore, this type of RFE frequently requests a copy of company’s Federal Employer Identification Number (FEIN), a copy of the Secretary of State Certificate to operate a business in the State where petitioner is doing business, and photographs of the interior and exterior of petitioner’s office, which depict the organization and the operation of the entity.  In order to avoid this RFE, the petitioner should describe the petitioner’s business in detail by providing the company’s brochures and/or recent press releases along with the above requested information when submitting the initial H-1B petition.  Furthermore, the Labor Condition Application (LCA) that is submitted must cover the work location where the beneficiary will be employed.

In-House Project details

If the beneficiary will work on an in-house project, some RFEs have asked, in conjunction with a question asking for more detailed explanation of the petitioner's product, whether the petitioner's technology or product is proprietary, and request a business plan, milestones for the project, financial statements, and a marketing plan.  In To avoid such a RFE, the original petition should describe the marketplace, merchandise, and resources of funds for the in-house project, if applicable.  With regards to the beneficiary, the support letter should state in detail their proficiency, training and knowledge with the details regarding the in-house project which they will work on.

Inappropriate Requests

Finally, while many questions that commonly appear in the standard H-1B RFE request legitimate information, some requests are clearly not appropriate under the regulations and indicate a possible lack of understanding by the adjudicator. For example, requesting the company’s in-house job announcement, and/or a job posting/advertiseme nt to be used to solicit applicants for the proposed position. Clearly, USCIS regulations do not require any form of recruitment for the proposed position. Responses to this type of request, while still responding to the question, should also challenge the underlying premise that the requirement is not specified in the regulations and therefore the request falls outside the scope of the regulations.

Conclusion

Careful preparation of petitions at the outset can forestall issuance of the Request for Evidence. Notwithstanding the hurdles noted above, the H-1B visa category is still a viable option for many companies. With appropriate documentation regarding the related company and the beneficiary and the prior consideration of what USCIS might request in RFEs, the H-1B petition can be approved, and the H-1B classification remains a viable alternative for companies seeking foreign nationals to meet their business needs

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[RameshNYC]

[Novak_Djokovic]

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[Novak_Djokovic]