• Attorney Prescott

H-1B filing tips for FY 2020 and how to avoid RFEs/Denials

It’s that time of year again when we direct all of our time and effort into preparing H-1B cap petitions. In the last two years we have seen a dramatic increase in RFEs ranging from issues on employer/employee relationship, specialty occupation, whether there is sufficient specialty occupation work available and day 1 CPT, just to name a few. There has also been a sharp increase in the number of denials for H-1B cases generally.

This year I expect no different. The purpose of this article is to inform you of steps which you can take to either reduce the chance of an RFE or more importantly a denial.

Farmington University candidates

As most of you will probably be aware Farmington University was a fake University set up by the Department of Homeland Security to expose Immigration fraud. To read more see the following article:

If you have a potential candidate who has a degree from Farmington University do not file an H-1B cap petition. I have read articles suggesting that students who enrolled in this University believed it to be a genuine University. This is a tough pill to swallow. I do not know of any real Universities that offer enrollment where there are no instructors, no curriculum or indeed any classes at all. If only getting a degree was this easy.

The reality is that any H-1B cap petition that is filed for a candidate with a degree from Farmington University is likely to be denied. Even if the candidate has another degree which qualifies them for the position, any request for a change of status will be denied on the basis that the student violated their F-1 status which leads to issues regarding unlawful presence. This will be discussed in further detail below.

Day 1 CPT candidates

Day 1 CPT is not properly authorized under any circumstances. See my previous article:

Therefore, if you have a candidate on day 1 CPT you need to seriously reconsider whether you want to file an H-1B for this candidate. Even if the H-1B is ultimately approved the change of status is going to be denied on the basis that the candidate has violated their F-1 status. This means they will have to go to the Consulate to obtain an H-1B stamp. If they have accrued more 180 days of unlawful presence then they will trigger the 3 year bar when they leave which means they will not be getting that stamp or returning to work for you. One year of unlawful presence triggers the 10 year bar.

If you file for a day 1 CPT candidate despite the above advice request consular processing to at least avoid a determination of their F-1 status.

Proper documentation

Most RFEs are avoidable. For example, the reason we receive an RFE on employer/employee relationship and the right to control is because of a lack of adequate documentation. Missing contracts, work orders, vendor and end client letters cause USCIS not only to question the above, but also the specialty occupation nature of the role and whether there is sufficient work available. I represent IT consulting companies all over the U.S. so I understand the challenges faced by companies in terms of obtaining these documents. Often end clients refuse to provide letters until an RFE is issued.

In July of last year USCIS issued a policy memorandum stating that the officer could issue a denial without first issuing an RFE. So far I have not seen a trend towards this, however who knows what is around the corner.

My advice is to submit a complete application with all necessary supporting documents. End client letters, for example serve three purposes.

Firstly, they establish that there is sufficient specialty occupation work for the requested period. A good end client letter will state the end date of the project in line with the requested validity dates or at least state that the project is expected to be long term.

Secondly, the end client letter demonstrates the specialty occupation nature of the role. This means that the letter needs to list detailed job duties. Letters containing generic job descriptions or 4 lines of job duties are not sufficient. The letter also needs to list the minimum requirements for the position being filed. If the letter states a Bachelor’s degree is required that alone is not sufficient. The letter needs to state a Bachelor’s degree in a specific specialty. I always recommend to my IT clients to list “a Bachelor’s degree in Computer Science or related field or equivalent.” This requirement should be consistent throughout the documentation. It should be reflected on the support letter, itinerary, vendor and end client letters.

Avoid listing too many fields or listing “engineering” as this is too generic. USCIS will claim that Engineering covers too many fields and that potentially someone with an agricultural engineering could qualify for the position of a Software Developer. It’s nonsense, but I have seen this.

Thirdly, the end client letter confirms that you as the Employer retains the sole right to control the beneficiary. By providing that letter the client is acknowledging that they do not control the Beneficiary’s work, pay him/her etc.

If you really can’t get an end client letter consider alternative evidence to demonstrate the employer/employee relationship such as e-mails between your company and the candidate, weekly status reports, performance evaluations etc. To demonstrate specialty occupation, if the candidate is already working at the end client (hopefully not on day 1 CPT!) then provide evidence of work product and an explanation as to what the Beneficiary is doing and how the knowledge from his/her degree has prepared them for the role.

Make sure the Beneficiary is qualified

You have a candidate with a degree in Mechanical Engineering and no work experience yet you want to file for an IT related role. On what basis is the candidate qualified? The answer is that he really isn’t and you will have a hard time convincing USCIS otherwise.

Make sure that the candidate is qualified for the position and if they have a foreign degree be sure to include an academic evaluation from a reputable evaluation company with the initial filing. Don’t wait for the RFE as it may never come.

Preponderance of the evidence standard.

Don’t be afraid to remind the officer in your cover letter of the correct standard that should be applied. The “preponderance of the evidence” standard only requires that the evidence demonstrate that the Petitioner’s claim is “probably true.” This shouldn’t be a difficult standard to meet, but too many officers are setting the standard much higher than this.

Final thoughts

The H-1B bar has been raised significantly. USCIS has changed the way in which they adjudicate cases so the only way that we can overcome these challenges is to change the way we approach these cases.

Best of luck for the forthcoming cap season.


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