Happy March everyone! As we wait anxiously for spring, our minds shift focus to the anticipation of the H-1B cap season. As many of you are likely aware, this past year has been extremely eventful for filing H-1B cases. United States Citizenship & Immigration Service (USCIS) has shifted its focus (wrongfully in many ways) to reviewing H-1B filings with increased scrutiny. This has resulted in higher numbers of Requests for Evidence (RFEs) and denials for occupations spanning from computer programmers to doctors.
We do not say this to scare you. We simply want to prepare you and your company for the realities of the current filing climate and to best prepare cases that can be approved without a RFE. To make sure we are preparing you for the most successful H-1B quota season possible, we have arranged a list of tips and things to remember as you prepare to file cases under this year’s H-1B Cap.
- Support letters from each party in the work arrangement: In some cases, a business may contract with another company for the expertise and resources of the business. This expertise will sometimes result in assigning an employee to work at a third-party location. Over the past year, we have seen increased scrutiny and demand from USCIS for more detail to be provided to prove that a satisfactory employer-employee relationship exists. We recommend asking for detailed support letters from each party in the arrangement that include:
- Name of the beneficiary;
- His/her job title;
- The title of the project and a brief yet detailed description of the project;
- A recitation of the degree requirement for the position and;
- A recitation of the job duties to be performed by the beneficiary.
These details should be consistent between each party’s support letters.
- Detailed Job Duties: In adjudicating cases, USCIS officers put a large amount of focus and emphasis on the job duty details of a certain position. If not many job duty details are provided, there will likely be a RFE issued questioning whether the position is a “specialty occupation.” USCIS will also assert that the submitted list of duties is “vague,” and it does not establish the specialty nature of the position. In order to best avoid these tricky RFEs, we recommend providing as many details about the job as possible. When creating a list of detailed duties, it is helpful to keep in mind that these officers do not have a background in technical fields, so more explanation is necessary to convey the complexity and specialty nature of the position. Questions to ask yourself while completing a list of duties include:
- What knowledge is required to complete this duty?
- What tools are used to complete this duty?
- How does this duty contribute to the overall goals of the project or assignment?
A brief description of what exactly the project or assignment is that will be performed is also important to provide context to the assigned officer reviewing the case. The more detailed a list of duties is, the greater likelihood that a filing will avoid being issued a RFE based on specialty occupation.
- Supporting Documentation from All Parties to the work arrangement: Similar to the previous point, each petitioner submitting a petition for a H-1B beneficiary must show that the petitioner has the “right to control” the Beneficiary. In other words, the company must prove that they are the actual employer of the Beneficiary/employee. This can be harder to prove when more than one company is a party to the work arrangement. Therefore, it is important to make sure each “link” in the employment relationship is well-documented and demonstrates that the petitioner is the ultimate employer of the Beneficiary. Including support letters and documentation of the existence of an on-going work relationship is very important to proving this control. Examples of proper documentation includes copies of Master Service Agreements (MSAs), Purchase Orders (POs), and Statements of Work (SOWs) between each party. If a party in the work agreement fails to provide this documentation, there is a high likelihood USCIS will issue a RFE questioning the right to control the Beneficiary. Sometimes parties will not divulge this information due to the existence of “non-disclosure agreements,” or NDAs. In this case, we recommend asking for a confirmation message from the party, in the form of an email message or letter, confirming the existence of the employment relationship, a recitation of the terms of the agreement such as length of time (3 years preferably), job duties, brief project description, degree requirement, and an acknowledgement that the beneficiary is not an employee of the party but of the Petitioner-company. The more documentation included, the more likely you can avoid having to provide that information later on in a RFE.
- Advertise for positions with degree requirement listed specifically with “or related field”: We have seen a trend where USCIS has begun to issue an increased amount of RFEs based on the specialty occupation nature of the position being petitioned. USCIS in particular will question whether the position has a degree requirement in a specific specialty because the position accepts “a wide variety of degree fields.” While there is no rule saying that a specific specialty must be in a single degree field, we recommend limiting the degree fields listed in the advertisements on your websites or otherwise to only those directly related to the position (ex.: if the position is for a Programmer Analyst, listing degree fields such as Computer Science, Computer or Electronics Engineering, or Computer Information Systems). USCIS has grown increasingly skeptical of employers who listed Business degrees in their ads, questioning whether such a specialty is directly related to the position advertised. We understand that each business has its own priorities and recruitment needs. However, to best decrease potential issues that can arise, we ask that you keep this in mind when creating advertisements for positions you anticipate needing to fill with an H-1B Beneficiary.
- Education + Experience Issues: Similarly, employers should not be filing for Beneficiaries without a degree in one of the specialties listed or its strict foreign equivalent. There is a current trend in H-1B case adjudications where RFEs are issued and denials are ultimately handed out on cases where Beneficiaries either completely relied on experience (and not a Bachelor’s degree) to meet the education requirement, utilized a combination of experience and education in an unrelated degree to that offered, have a degree in an unrelated concentration, or have a degree that is not equivalent to a U.S. Bachelor’s degree (i.e., a four year degree). As previously mentioned, we understand each business has their own set of priorities for who they would like to hire. If employees are to be hired without a relevant degree or do not have a strict foreign degree equivalent, we recommend obtaining an education equivalency evaluation before filing the petition to best avoid a RFE based on the Beneficiary’s qualifications for the position.
- Project changes: Many times during the pendency of an application job details or projects may change. We understand that, and so does USCIS. However, if changes do occur, USCIS needs to be notified. This is true even with H-1B quota filings. The job and/or project must be available to the employee at the time the employee would take the position (October 1st of the year in which you filed the quota case). Not notifying USCIS of the project change can create problems for the case if it is picked up in the quota and can even lead to a denial of the case. If changes do take place, please let your attorney know as soon as possible so the appropriate corrections can be made (if in fact necessary) and submitted to USCIS.
This is only meant to be a generalized list of recommendations based on our observations over the past year. Any specific questions or concerns related to filing a H-1B petition should be addressed with an attorney to best ensure you prepare yourself completely for filing under the quota.
We hope you find these “tips” useful as you decide your hiring needs for the H-1B quota season this year. Please feel free to contact us if you have a specific question about the information above or any other general questions.