H-1B Cases: RFE Trends
It typically takes approximately three months for USCIS to adjudicate an H-1B petition. If an employer filed an H-1B petition in April and it was selected in the H-1B lottery, the employer should be receiving the decisions or request for additional evidence (commonly known as “RFE”) on the H-1B petition around this time of the year. In this issue, Verma LAW FIRM will discuss the latest in RFE trends and provide tips for responding to H-1B RFEs.
A successful H-1B petition requires that the proffered position be a specialty occupation – an occupation that requires a baccalaureate level of education in a specific field of study. Based on the RFEs we have received this year and in 2013, it appears that the California Service Center has placed the Computer Systems Analyst positions under close scrutiny. While in the real world a person performing the job duties of a Computer Systems Analyst would invariably require a baccalaureate level of education in computer – related field, USCIS relies solely on the Department of Labor’s Occupational Outlook Handbook, which states that “Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.” Relying on this language alone and without considering what the job duties actually entail, USCIS hasquestioned whether the Computer System Analyst position is a specialty occupation.
To address the issue regarding the Computer Systems Analyst or any other proffered position being a specialty occupation, we suggest that Petitioners submit objective documents to show that it is the common practice in the industry to hire people with a bachelor’s degree in a specific specialty for the proffered H-1B positions. These documents include but are not limited to: pertinent USCIS memos and case law, an expert opinion letter, vacancy announcements posted by similar employers for the proffered position, the Petitioner’s own vacancy announcements for the proffered position, a document showing that the Petitioner consistently employs only those with a bachelor’s degree in a specific specialty for the proffered position, and a detailed job description demonstrating that only a person with a bachelor’s degree in a specific specialty can perform the duties of the proffered position. Moreover, as a precautionary measure, it is strongly advised that Petitioners do not overly generalize the minimum education requirement for the proffered position, as it could lead USCIS to conclude that the proffered position is not a specialty occupation because anyone having a bachelor’s degree in the general field could qualify. For example, for a Computer Systems Analyst or Software Engineer position, the minimum education requirement should be more specific than “Engineering (any field)”.
Beneficiary’s Qualification. To be eligible for an H-1B visa, the Beneficiary must possess education and experience an equivalent of a U.S. Bachelor’s degree in a specific field that is relevant to the job duties of the proffered position. If a Beneficiary’s education alone is not sufficient to meet this requirement, his or her work experience can be used to supplement the education. Specifically, the Beneficiary’s three (3) years of work experience in progressively responsible positions are equivalent to one (1) year of college education. For Beneficiaries who received foreign education, an education evaluation report is submitted with the H-1B petition. The evaluation report equates the Beneficiary’s foreign education or a combination of education and work experience to a U.S. Bachelor’s degree or higher in a specific specialty. However, regulations limit the scope of the foreign credential evaluators to evaluating foreign education only, and not practical experience. Only experts such as university professors can evaluate training and/or experience and determine whether they are equivalent to college education. As such, when an education evaluation report equates work experience to education, USCIS will likely issue an RFE requesting an expert opinion letter.
Employer – Employee Relationship.The H-1B regulation also requires that the Petitioner has an employer-employee relationship with the Beneficiary through the right of control, as demonstrated by its ability to hire, pay, and fire the Beneficiary. In cases where the Beneficiary will be placed at a client site based on a contract between the Petitioner and its client, USCIS will invariably request the client letter and the servicing contract(s). Therefore, it is important that Petitioners submit end-client letters, the servicing contract, as well as an organizational chart evidencing the Petitioner’s chain of supervision in regard to the Beneficiary. If there is one or more mid-client involved, we strongly recommend that Petitioners submit a letter from each of the mid- and end- clients. Petitioners should also specifically emphasize that even though the Beneficiary will be working at a client site, the Petitioner is solely responsible for hiring, paying, managing, firing the Beneficiary and assigning tasks to the Beneficiary.
Sufficient Specialty Occupation Work and Production Space.When Petitioners are small/startup companies, USCIS often demands evidence to show that there is sufficient specialty occupation work covering the entire period of intended employment. If the Beneficiary will be working in-house, USCIS will often question whether the Petitioner has enough production space for the Beneficiary. As such, Petitioners should be prepared to submit a detailed project write up, lease agreement, photos and square footage of the Petitioner’s facility, as well as other pertinent documents. If the production space is obviously too small for the Petitioner’s size, the Petitioner needs to explain how the Beneficiary will carry out the in-house work. In cases where the Beneficiary will work at a client site pursuant to a servicing contract between the Petitioner and its client, USCIS will likely question whether there is sufficient contractual work for the Beneficiary. As such, Petitioners should submit statements of work/purchase orders covering the entire period of intended employment. If the statement of work/purchase order does not cover the entire period, the Petitioner should demonstrate that the work will likely continue based on a pattern of how statements of work/purchase orders were issued in the past.
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