As we enter H-1B Cap Season this year, Ahluwalia Law Offices would like to take a moment to review some of the trends from last year and make sure our employers and beneficiaries are fully informed on USCIS requirements and possible triggers for Requests for Evidence.
Our thoughts on RFE trends are listed below, along with redacted versions of such RFE’s. Being aware of these trends will allow employers to avoid time consuming efforts of responding to RFE’s.
Is the Job Considered a Specialty Occupation?
USCIS does not rely solely on job titles to determine if a job is a specialty occupation. The duties which are provided in the job offer letter, employer support letter, end client letter, and job itinerary are crucial. If job duties are vague, we will likely receive the following Request for Evidence:
How do you show Right to Control when the Employee works offsite?
When an employee will be placed offsite, USCIS requires contracts and end client/vendor verification of the contractual relationship. Because the employee will be physically removed from the employer’s location, the contracts, purchase orders, and end client/vendor letters must make it clear that the employer will nevertheless retain the right to control the employee as his or her true employer.
When contracts, purchase orders, and end client/vendor letters are not available at the time of filing, we typically predict we are likely to get the following Request for Evidence:
Availability of Specialty Occupation Work
We ask employers for purchase orders, service agreements, and letters from clients/vendors whenever a beneficiary is to be placed offsite at a location other than the employer’s. These documents are used to establish that there will be sufficient work available for the length of the requested H-1B period.
It is very common and predictable that we will get a RFE if we are unable to include purchase orders, agreements, and letters. We can also predict that we will get an RFE if the purchase order is only for a short period of time, or if the end client only provides a vague letter without confirmation of the length of the project.
In order to avoid the following RFE, we recommend purchase orders, service agreements, and letters from end clients and vendors which confirm the position title, duties to be performed, location of work, contractual relationship between employer/vendor/end client, and a specific length of time that the parties anticipate a project lasting.
Beneficiary’s Qualifications—4 year Degree/Matching the Job Offer
One common issue pertains to the beneficiary’s education and qualifications. First, USCIS requires four-year bachelor’s degrees. Even if a beneficiary has obtained a Credential Evaluation which equates his three year bachelor to a four-year U.S. bachelor’s degree, the extra fourth year must be accounted for when determining whether the beneficiary is qualified for the offered position. There is a 3-to-1 ration, so three years of experience in the field of study or closely related will equate to one year of education, thereby giving the beneficiary the requisite qualifications.
Another common cause for RFE’s is that the beneficiary’s degree does not match the offered job. A beneficiary should not have a Bachelor’s in Mechanical Engineering if the offered job is in Systems Administration (unless she has 12 years of experience in Systems Administration and a detailed evaluation of experience qualifying her for the role).
VIBE (“Validation Instrument for Business Enterprises”)
USCIS relies on VIBE to confirm the existence of the petitioning company. We recommend that our employers register on Dun & Bradstreet (http://fedgov.dnb.com/webform) to avoid the following Request for Evidence.
Maintenance of Status (Especially for Student)
A prospective H-1B employee must be maintaining his or her status in order for USCIS to approve a request for change of status to H-1B. If a break in the student’s I-20’s shows they may have failed to enroll in time last semester, or if the student has I-20’s from a school in California but has an address in another state, maintenance of status questions are possible.
It will be interesting to see what new issues may be raised for students working under the new STEM rules, and what types of maintenance of status requests will be raised for these students. It is possible we may get more Maintenance of Status requests because the new STEM rules increased requirements for students and OPT employers, therefore leaving more room for failures in maintaining status.