• Attorney Prescott

H-1B cap case update and recent trend re Statements of Work/Work Orders

H-1B cap case update

USCIS has confirmed that it received a total of 201,011 H-1B petitions and on April 10, 2019 ran a computer-generated random selection process to select a sufficient number of H-1B petitions to meet the regular cap and the U.S. Master's cap for fiscal year FY 2020.

In accordance with the new H-1B regulation, USCIS ran the lottery for the regular cap cases first, followed by the Master’s cap. This is the reverse of what has happened in previous years.

Hopefully we will start seeing receipt notices for selected cases in the next coming 2-3 weeks and for those cases that were not selected we will receive the returned petitions and checks.

As soon as we start receiving notifications from USCIS we will update our clients accordingly.

This number reflects an increase in the number of H-1B applications filed compared with last year's cap, which saw approximately 190,000 filed. This is very encouraging. Despite all the challenges over the last 2 years employers are still willing to file for their employees and we will continue to work with our clients to obtain approvals wherever possible.

Since releasing the H-1B hub on the USCIS website, which lists companies by name and the number of initial/ continuing approvals and denials, it is clear that there has been a sharp increase in the number of denials, especially since Trump signed the American and Hire American Executive Order. This is despite the fact that there has been no real regulatory changes in the law. Essentially USCIS have been raising meritless challenges in the form of RFEs and denying cases for no good reason. This is clearly a departure from established practices.

Statements of Work/ Work Orders

One recent trend that we are seeing at the Patel Law Group is that we have noticed that USCIS is starting to really focus on the Statements of Work/Work Orders.

In particular, USCIS is questioning the validity period where the Statement of Work/Work Order is only issued for a period of say 6 or 12 months. In the world of IT, we know that it is the industry standard for Statements of Work/Work Orders to be issued for 6 to 12 months at a time, despite the fact that the project itself is long term in nature. Prior to the expiration of the Statement of Work/Work Order a new Statement of Work/Work Order will be issued for another 6 to 12 months and so on, until such time as the project has been completed.

This is and has always been the industry standard. USCIS has approved thousands of H-1B applications based on this standard, however, they now appear to be taking a different approach in recent months, which has resulted in several cases being denied. This is despite the fact that in addition to the work orders, vendor and end client letters have been submitted which confirm that the project will be available for the requested validity period as listed on the I-129 application.

USCIS have also stated in numerous cases that the work order does not set forth certain information such as the beneficiary's detailed job duties.

Work Orders do not and never will contain details of the beneficiary’s specialized job duties, salary, hours worked, benefits and details of the beneficiary’s supervisor. The purpose of the Work Order is purely to show the availability of the work. The items listed above such as the Beneficiary’s specialized job duties are covered in the detailed itineraries, vendor and end client letters. There is no requirement for the Work Order to contain this information and USCIS does not have the authority to make it a requirement. If this information is contained within a letter from the end client that issued the Work Order and is signed by an authorized official then USCIS has no basis to deny a case, simply because the Work Order does not contain it.

We will fight USCIS on this issue and any new challenges that they to throw at us!

April 12, 2019


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