A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, June 18, 2013

Common Reasons for Requests for Further Evidence or Denial in H-1B Cases

This past April was a very busy H-1B filing season, with all available numbers being used up within the first five days.  If your case was not selected in the visa lottery, you must consider other options to stay legally in the U.S.  But for the cases that have been accepted for processing, it does not mean that the beneficiary will definitely be granted H-1B status.  The U.S. Citizenship and Immigration Services (USCIS) routinely issues official Requests for Further Evidence (RFE) in pending cases.  If the required evidence is not submitted, the case will be denied. The following are some common reasons for the issuance of RFEs and/or denials:

1)  The H-1B occupation is not a “specialty occupation”:  H-1B visas are issued to professional workers who engage in “specialty occupation,” which normally requires a bachelor’s or higher degree or its equivalent as the minimum requirement to enter the profession.  The employer may also prove that it usually requires a degree or its equivalent for the position, or that the job duties are so complex or unique that it can be performed only by an individual with a degree.

2) The petitioner is not an eligible H-1B employer:  Nowadays, USCIS routinely verify an employer’s corporate and financial information with government and commercial databases such as those provided by Dun & Bradstreet.   RFEs will be issued if the corporate name, identity, address, financial information, etc., do not match with the information provided by these databases.  Newer and smaller companies’ H-1B petitions are particularly vulnerable as they may be viewed as too small to need the services of an H-1B employee.

3) Failure to prove an employer-employee relationship: A January 8, 2010 USCIS policy memo mandates that a traditional common law "employer-employee relationship" must exist between the petitioner and the beneficiary in an H-1B petition during the entire period of H-1B employment.  RFEs are often used to ascertain the existence of such a relationship especially for off-site employment and third-party placements.  Tremendous amount of documentation is usually needed to sufficiently respond to this type of RFEs.

4) Issues with job location: The job location is also an area of focus in many RFEs, as part of inqury into the employer-employee relationship.  The actual job locations must be clearly reported in the Labor Condition Application (LCA).   If the job location is not clear or different from the employer’s office location, or if there are multiple locations, an RFE will likely be issued.

5) Right to control the employee: This issue also relates to the issue of “employer-employee relationship.” USCIS wants to make sure that the employer actually employs and controls the employees rather than just placing them in a “job shop.”  This is a complex question that requires an examination of things such as tax treatment of employees, daily supervision, payroll, tools and equipments used, training, employment contracts, employment benefits, etc.

6) Employer’s ability to pay: Employers are required to pay H-1B employees the required market wages (or actual wages if higher) as stated in the Labor Condition Application.  H-1B jobs are usually professional occupations that command higher salaries than average. If it is not clear from the initial I-129 petition that the employer has sufficient financial resources to pay the required wages, an RFE will be issued.  For smaller companies that do not have sufficient business profits, other evidence must be submitted to satisfy this requirement.

7) H-1B employee’s education and qualifications:  As stated above, H-1B occupations usually require the attainment of a bachelors’ degree or its equivalent in order to enter the profession.  Many jobs also require other qualifications such as previous training and work experience.  Professional jobs may also require state-issued licenses and professional degrees.  If it is not clear from the H-1B petition submitted that the foreign worker processes the required qualifications for the position, a RFE will definitely be issued.

There are other reasons for issuing RFEs and/or denials in H-1B petitions.  In fact, USCIS can actually deny an H-1B petition outright without issuing a RFE first if it is determined that additional evidence will not be possible to overcome the deficiencies in the petition. Sometimes, USCIS also issues a Notice of Intent to Deny (NOID) if there is little or no evidence submitted or if there is a discretionary issue in the case to consider (although the basic requirements are net).  Hence, it is very important to provide appropriate and sufficient evidence when submitting an H-1B petition to avoid a denial.

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