Trends in H-1B Request for Evidences

For any pending H-1B files when the adjudicating USCIS officer is not satisfied with the evidence presented, a Request for Evidence (also known as the dreaded “RFE”) is issued. RFE’s will continue to be issued even after September 12, 2018 under new rules, though direct denials are a possibility when some major required initial evidence is missed with the original filing. USCIS has published a checklist at https://www.uscis.gov/i-129Checklist and should be used as a pointer for all H-1B filings.

Majority of the Request For Evidences ( RFE’s) lately for  H-1B workers can be categorized into  two main categories:

  1. Specialty Occupation
  2. Right to Control / Employer-Employee Relationship

The above two comprise the majority of the H-1B Request for Evidence. The other categories are not as complex as above but can be categorized as below:

  1. Maintenance of (Current) Status
  2. Vibe Information/Employer Information
  3. Beneficiary’s Qualifications
  4. Availability of Specialty Occupation Work
  5. Extension beyond six years
  6. STEM OPT/CPT  status issues

For the purpose of this article, we will discuss more on Specialty Occupation and Right to Control RFE’s which are considerably complex based on the facts, especially when 3rd party offsite (or client-based) worksite arrangements are involved. Most of the denials we are currently seeing are attributable to these two main issues namely the specialty occupation issue or the employer-employee relationship (also known as right to control) issue

Specialty Occupation:  A job has to require a minimum of bachelors or a higher degree in a SPECIFIC SPECIALTY to qualify as a specialty occupation job for H-1B. A job that does not require a minimum of a bachelors degree or a job that requires ANY or a DIVERSE SET (such as Business, Engineering etc) of Bachelors degree typically does not meet the regulatory requirement for H-1B.  Most of the Computer related occupations were previously assumed to require a Bachelors degree based on Occupational Outlook Handbook statements and other standards. However lately, USCIS has started to place the burden of proving the specialty occupation on the employer and issuance of an RFE requesting that the employer prove that the petitioned job is indeed a specialty occupation job. President Trump has issued the “Buy American Hire American (https://www.uscis.gov/legal-resources/buy-american-hire-american-putting-american-workers-first) ” order in April 2017 and pursuant to this order number of policy memoranda were issued. Currently, entry-level (Wage Level 1)  jobs in all computer occupation jobs are highly scrutinized and petitioners are being issued an RFE to prove that the job indeed requires a Bachelors degree in a specific specialty. Occupations like Computer Systems Analyst, Computer Programmers, Network Administrators are facing increased scrutiny even at higher wage levels. USCIS still has been approving such occupations but petitioners are required to demonstrate through more substantial evidence to prove that the petitioned job is a specialty occupation job. Lately even some Software Developer (15-1132) based jobs are being questioned and petitioners being asked to prove through documentary evidence that the job is a specialty occupation job. This RFE is typically more frequent when the beneficiary is working in a computer occupation and has a non-computer based or unrelated degree (such as Mechanical Engineering, Civil Engineering, 3 year degrees, MBA, Business degrees etc).

To see the current regulatory standard for specialty occupation and also view a sample specialty occupation RFE issued by USCIS please visit the site https://chandlegal.com/specialty-occupation/

To prove that a petitioned job is a specialty occuaption job, USCIS typically has a list of documents that are suggested. Typically letters from end client stating the minimum degree requirements for the job, very detailed and descriptive job description clearly showing the percentage of time spent on each duty, affidavits from similar sized companies, previous advertisements by the petitioner for similar jobs, previous hiring history for similar jobs by the petitioner, wage levels for the job, nature of the occupation as shown in the occupational outlook handbook reports, the job zone of the occupation as per occupational outlook handbook, expert opinions by professors etc are some of the means why which the complexity of the job and common industry standards for a job can be judged and thereby used to prove that the job is a specialty occupation job.

Right to Control/Employer-Employee RelationshipIn 2010, USCIS has issued a memo on Employer-Employee relationship. This started the whole issue of client letters but this has been further complicated by a more recent memo that came out in Feburary of 2018. In the February 22, 2018 memo USCIS has stated that NON-SPECULATIVE work has to be proven by client letters and work orders. The vendor letters, implementation partners are of very low value if the end client letters or end client work orders cannot be procured and submitted to USCIS. Further, if the end client letter does not have all the required elements, USCIS has been quick to deny the cases. Specifically, if a client letter does not state 1) Name of the beneficiary; 2) Duration of Project; 3) Minimum Educational Requirements 4) Job Duties; 5) Name of the Actual Employer and Contractual Chain, there is a big possibility of USCIS raising the flaw and requesting end client work orders and contracts. USCIS has been occasionally rejecting the client letters or issuing RFE’s if the letters do not have all the elements stated in the memo. An example can be viewed by clicking the link  “RFE copy for Client Letter Issue“. For additional information on this RFE visit the author’s blog at  https://chandlegal.com/roc/ to see an example of an RFE issued by USCIS and listing out the documents needed to satisfy this requirement.

Unfortunately, some clients have a policy of not issuing any kind of client letters while some end clients have a very standard format that does not meet the USCIS requirement. Employers are requested to forward the USCIS’ Feb 22nd memo to the end clients to show the importance of procuring such a letter from the end client and the regulatory requirement of providing such a letter for the purpose of H-1B visa. Some end clients are also inclined to release a client letter or work order if a NON-Disclosure or Confidentiality Agreement is signed and is used only for the purpose of releasing it to the government agency for the sole purpose of the visa petition.

In summary, to minimize the risk of such RFE’s care should be taken to ensure those job duties are carefully defined, are very elaborate and clear. Client letters clearly stating the job duties, minimum educational requirements, duration, and the name of the actual employer should be attached. Further extra care should be taken to ensure that work orders have a duration that is in line with the requested H-1B duration in the petition.

RFE’s and Filings Post September 12, 2018 : We have received both approvals as well as RFE’s after September 12th. USCIS will still issue RFE’s as long as the documents in the USCIS I-129 checklist are a part of the initial filing. The USCIS checklist is available at https://www.uscis.gov/i-129Checklist and care should be taken to ensure that the documents listed in the checklist are part of the initial filing. One of the  RFE’s that we received today from Nebraska (filed after September 12 in new rules) was basically for a simple educational evaluation. One of the approval we received today and filed after September 12th was for a Nunc Pro Tunc request where the H-1B beneficiary’s I-94 expired at the time of filing for an extension and we requested a backdating of the approval. This was a good candidate for a direct denial under new rules but USCIS (Nebraska Service Center) approved the case after the issue was explained and a request for Nunc Pro Tunc based approval made in the filing due to extraordinary circumstances of that case. We do not have the direct denial or RFE data for California and Vermont filings done AFTER September 11 under new rules as premium is currently suspended. However as long as the USCIS checklist adhered to and all initial evidence attached, USCIS will most likely issue an RFE and not a direct denial.

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