Immigration Lawyer Dissecting The H-1B Visa RFE

The processing of H-1B visas has taken on a considerable evolution during the past 3 years. Unless the H-1b visa petition is carefully planned by the immigration lawyer, an H-1b visa Request for Evidence “RFE” is inevitable.

If you examine the H-1b visa RFE issuance patterns, you will find out that larger corporations that employ thousands and thousands of employees, rarely receive RFEs for their H-1b visa petitions. The smaller the employer, the more likely an RFE will be issued. Furthermore, the USCIS is targeting employers who place H-1b visa workers at third-party worksites more so than ones who employ their H-1b visa employees for an internal project.

Usually, there are two types of RFEs:

I. RFEs concerned with the actual position itself as to whether it rises to the level of a “specialty occupation.” Such RFEs require the submission of evidence that the proffered position meets one of the following criteria that:

  • A baccalaureate or higher is normally required for this type of position:normally the USCIS wants to see proof such as documentation from the Occupational Outlook Handbook, from a similar authoritative source or case law that had established that the position, in fact, has been determined as one requiring a bachelor’s degree by industry-wide practice or by administrative determination.
  • The degree requirement is common to the industry in parallel positions: this particular criterion requires submitting a survey of similar positions with similar size employers requiring a bachelor’s degree or higher.
  • The employer normally requires a degree for like positions: if the employer can establish that it requires a bachelor’s degree for all similar positions within its company and that a bona fide business necessity exists which causes it to require bachelor’s degrees for the particular position, then the USCIS will agree that the position is a specialty occupation.
  • The nature of the duties are so specialized and complex that the knowledge required is associated with a baccalaureate degree: this particular inquiry is satisfied by the submission of credible expert evidence which analyzes the position itself and concludes that it so complex that a formal education in the particular field is necessary to prepare the worker to perform successfully in this particular position.

Once the employer submits satisfactory evidence meeting any of the above-enumerated criteria, the H-1b visa petition will be approved by the USCIS. My firm always tries to meet ALL of such enumerated criteria to be on the safe side as we would not want to put “all our eggs in one basket.”

II. The second type of RFE is not focused on the position itself necessarily, but is mainly concerned with the relationship between the employer and the employee. This second form of RFEs normally asks for the submittal of the following documentation:

  • A listing of all previously sponsored H-1b visa petitions and case numbers
  • Contract between the petitioner and the H-1b visa employee;
  • Complete itinerary of activities of the H-1b visa worker
  • Contracts between the petitioner and the end client;
  • Detailed description of the internal project if any;
  • Federal Income Taxes;
  • Quarterly Wage reports;
  • Photographs of the Business Premises;
  • Position Announcement;
  • Lease agreement; and/or
  • Occupancy permits, etc.

One could easily see that the second type of RFEs are primarily probing into whether the employer is a bona fide business entity. Furthermore, this type of RFE inquires as to whether the petitioner is “too far removed” from the end client and the actual worksite due to the existence of too many middle party contracts. Put succinctly, if there exists more than one contractor between the petitioning H-1b visa petitioner and the third party client where the H-1b visa worker actually works, the H-1b visa has a high likelihood of denial.

There is no regulatory rule of law which supports the view of the USCIS in this regard whatsoever. Such H-1b visas may only be approved if the petitioner can show a high level of involvement in the H-1b visa worker’s performance on an ongoing basis. This may not be easy to establish for most employers who “contract” their “consultants” to third-party employers, sometimes they hardly know what they do. I do not believe that the regulations in any way prevent this type of relationship to exist; after all, it was the petitioning employer who delivered the H-1b worker to the workplace, albeit through a convoluted array of middle parties.

Why does the USCIS do this?

I believe the USCIS is afraid of the growing number of H-1b visa workers in the US. As hard as it may seem, the USCIS has a phobia that the agency may be causing an increase in the foreign labor workforce. At any given time, there are about 450,000 H-1b visa workers in the US and growing every year. Remember there is 85,000 additional H-1B visas cap cases added to the mix on an annual basis. H-1b visas are depleted by issuance of green cards to the foreign nationals at the end of the process. But the road to permanent residence is getting longer as the Visa Bulletin shows no sign of relief and the priority dates are severely backlogged. With the promulgation of AC21, H-1b visa holders are able to extend their H-1b visas beyond six years. This leads to an overpopulation of H-1b visa holders as 85,000 new visas pour in every year, and the ones who leave at the end of the process are not as many due to green card delays.

With such growing number of H-1B visa, it appears that the USCIS is taking matters into its own hand and legislating by memoranda such as the newly introduced Neufeld Memorandum which seeks to define the “proper” relationship between H-1b visa employer and employee.

The immigration lawyers of The Law Firm of Shihab & Associates, Co., LPA offer immigration law services in Columbus, Cleveland, Southfield, MI and Washington, DC. The International and Immigration lawyers at The Law Firm of Shihab & Associates are keen about understanding the needs of our clients and the members of their families and loved ones. Gus M. Shihab, the founder of The Law Firm of Shihab & Associates is himself foreign-born and has family and/or friends who have gone or are currently undergoing the complex US immigration journey. As a result, he instituted a culture of ethics, sensitivity, responsiveness, and competence in the delivery of the immigration law services. We pay close attention to our clients’ matters, hopes, aspirations and personal goals. The business immigration lawyers in our firm have a personal and exceptional approach to processing visas and for dealing with our international clients. Our lawyers will individually and clearly explain the visa or green card process and will simplify the complex procedure in small easy to understand steps.
To schedule a consultation, please feel free to contact The Law Firm of Shihab & Associates by e-mail or call (800) 625-3404.

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