H1B CAP Season FY 2017 is soon approaching. This is a reminder to our community of clients, listeners and readers, to be aware of the updates and trends in preparing not only your H1B petition but also for Request for Evidence (RFE).

If you are a Consulting company or an employee of a Consulting company, be aware that the “end client letter” is still a seminal document. This will provide you an approval notice without any RFE. The “end client letter” can be in the form of emails or purchase orders. USCIS will ask this question about the employer often, but we have also seen this question referring to an “end client”. For instance, our client was recently asked about the “end client” employing specialty workers! Such a question is quite significant in many perspectives. But for now, having an “end client letter” in advance and mentioning the requirement of a specialty worker for the project that the employee is being staffed on, will avoid such comprehensive RFE. Using the prongs reflected in the RFEs, ALO has an end client template, which cover all issues that pertain to USCIS requirements.
“Specialty occupation” Requests for Evidence (popular area of USCIS interest for FY 2016 filings, filed in April 2015) and “Right to control” Request for Evidence, are here to stay. Avoid such RFEs by making the proof of the Employer-Employee relationship an integral part of your filing. The Employer-Employee Memo of January 8, 2010 provides guidance to the adjudicators on how to determine such relationship between the petitioner and the beneficiary, especially in the third party employment situations. USCIS relies on common law principles and two leading Supreme Court cases (Nationwide Mutual Insurance Company v Darden and Gastroenterology Assoc. v Wells) in determining what constitutes an employer – employee relationship. The Common law test requires that all incidents of the relationship be assessed and weighed with no one factor being decisive. The Supreme Court has stated:

Among other factors relevant to this inquiry are the skill required, the source of instrumentalities and tools, the location of the work, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the extent of hired party’s discretion over when and how long to work, the method of payment, the hired party’s role in hiring and paying assistants, whether the work is part of the regular business of the hiring party, whether the hiring party is in business, the provision of employee benefits, and the tax treatment of the hired party.

If you are a new company or an established company which has changed its address recently, please be aware that you may be asked to validate the existence of your business through the VIBE request for evidence. Please update all online profiles with address or name changes. You can also establish your existence by registering your company on online databases. USCIS recommends filing with Dunn & Bradstreet (D&B) . Please be aware that D&B requires you to pay a subscription to register your company with them.

Additionally, one of the USCIS announcements that will impact you FY 2017 CAP cases is increase of fee for certain H-1B and L-1 petitioners. If your company employs more than 50 people and more than 50% of your employees are on H-1B or L-1 nonimmigrant status, DHS will now require an augmented fee of $4,000 for certain H-1B petitioners and $4,500 for certain L-1 petitioners. This fee is in addition to the base processing fee of $2,325 to be enclosed with your filing. Such a fee arrangement will remain effective through September 30, 2025. It replaces the $2,000 fee increase provision, which had its sunset on September 30th, 2015.

If you or your employee is a student using the STEM provision and their STEM OPT is expiring prior to the filing of the H1B CAP petition or soon after, please be aware that the CAP GAP provisions will be impacted due to the current lawsuit filed in the US District Court for the District of Columbia (Washington Alliance of Technology Workers v DHS). The matter challenged the Department of Homeland Security’s failure to follow public notice requirement when promulgating the STEM OPT rule in 2008. District Judge Huvelle ordered that vacatur of the 17-month STEM OPT extension is stayed until May 10,2016. Please be aware of the challenges when requesting an extension of stay, if the final regulation is not in place prior to the April, 1st, 2016.

At the end of our discussion, please arrange your documents for filing the petition for the CAP season 2017. This includes and is not limited to credential evaluations of all foreign degrees and certifications, mark sheets with transcripts and any experience letters. Please make sure to use updated forms directly downloaded from relevant Govt. links. Give a thought to your travel plans.

We wish you the Best this coming H1B CAP season and ask you to stay tuned for updates by logging back on to www.ahluwalialaw.com.