By Attorney Jim Gotcher
Global Immigration Partners
As Monday, April 1, 2013 quickly approaches, those of us in the business immigration world are preparing to file H1bs on behalf of those, who are applying for the first time. Typically, the applicants range from those, who are overseas and planning to come to the United States for work to those, who are here and are either students or spouses, who need work authorization.
Three years ago, we saw the quota close in January of the next year. Two years ago, it closed in November. Last year, it closed in June. Everyone was left asking why did it go so quickly and based on rumors, a large consulting company, who was getting their L1s denied decided to file a large number of H1bs for their L1 holders and this used up almost 1/5 of the quota. If the other companies follow suit this year, we will see the quota close on the first day. Hopefully, enough people transferred from the company once they got their H1bs, that it scared off the other companies from following, but only time will tell. We are instructing clients to prepare as though the quota will be finished on day 1.
OK, so what do you need to know about filing an H1b for this year’s quota? It is important to understand certain aspects of the H1b in order to successfully navigate the process. I look at an H1b as having three main areas — employer, employee and position.
Position: The position must be a specialty occupation, which is defined as a position that “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.” This past summer, the USCIS began scrutinizing H1bs, where the beneficiary had a degree in an unrelated field. In order to overcome this type of RFE, the beneficiary must be able to show that they have work experience in a related field, which is the equivalent to having a degree (or concentration) in that field.
Furthermore, the USCIS began issuing RFEs regarding the position itself and whether it does in fact require a degree in a specific field. When they issue this type of RFE, the USCIS says that the Occupational Outlook Handbook (OOH) shows that a person can have a degree in various fields to enter into that position and since the OOH does not indicate that there is only one field for entry, it is not a specialty occupation. This is a flawed argument that we have overcome numerous times over the last year as the case law and regulations do not support the USCIS position. Nonetheless, it is important to make sure that the position does require a bachelor’s degree and falls in a Job Zone 4 on the DOL’s O-net online.
Towards the end of the year, the California Service Center started to include a specialty occupation part to their request for evidence for off-site employment. In this section, they state that they want evidence from the end-client that the position requires a bachelor’s degree in a specific field. This is always hard when the end-client will not provide a letter in most instances and requires the assistance of all of the parties involved. It is important to consult an attorney before getting a client letter as many client letters do not contain the USCIS’ most recent demands in them.
Employee: The employee must possess at a minimum, a bachelor’s degree in a related field to the position or the equivalent education and work experience. It is also possible to qualify someone with just experience and no education, but the evidence required for this is almost impossible to get. It is important that if you intend to use experience to qualify either by itself or in combination with education, that the letters meet the requirements set forth by the regulations. It is equally important to use a credible evaluation service like Trustforte or Morningside Evaluations.
Employer: Depending on the type of employer, the employer will need to provide evidence that they can provide the beneficiary with specialty occupation work for the requested validity period. Where the employee is working at the offices of the employer, the USCIS will often want to see what the petitioner’s product or service is, whether they have adequate space for the beneficiary to work from and whether they have clients who are using their product/services.
Where the employee works offsite, the USCIS’ concern is with the right to control. Specifically, they will want to see master agreements, work orders, client letters, project documentation, etc., to prove that the petitioner retains the right to control the beneficiary while they are assigned to a client’s worksite and that the project/assignment will last for the requested validity period. Recently, the USCIS has become more strict about evidence from the end-client. In the past, they seemed ok with almost anything from the end-client, but recently, there has been an insistence for client letters or agreements between the client and vendor. It is important to understand that the USCIS does not give a vendor letter any weight, even if this is an implementation project and the implementation vendor provides a letter as the end-client. There seems to be a fundamental misunderstanding of the IT consulting industry which has led to an insistence for evidence from the party, who provides the work space.