logo

诚征坛主 您想奉献对海外华人社区的一份关注吗? HCCBBS急需您的加入, 欲参与管理论坛, 变成公告栏主持人, 请联系我们
HCCBBS 精彩频道
bookshelterthebestcwohccbbs
经典频道 房地产信息 金融理财 就业市场 移民签证 名人健康 餐饮指南 影视歌星 网上征友 游山玩水 网上文摘 音乐大师
德州旅馆 分类目录 各抒己见 生意买卖 分类目录 名人文摘 新大陆笔社 新月文摘 名人电视 名人电台 技术白皮书 体育世界
世界名城 阿尔伯克基 亚特兰大 奥斯汀 巴尔地摩 湾区 波士顿 芝加哥 辛辛那提 达福地区 丹佛 底特律 休斯敦 印城
拉斯维加斯 洛杉矶 迈阿密 蒙特利尔 新奥尔良 纽约 奥克拉哈马城 奥兰多 费城 凤凰城 匹兹堡 沙加缅度 盐湖城 圣路易斯
圣安东尼奥 圣地亚哥 旧金山 西雅图 多伦多 图森 温哥华 韦科 华盛顿 伦敦 巴黎 柏林 维也纳 悉尼
东京 新加坡 雅加达 北京 长沙 成都 重庆 佛山 福州 广州 杭州 合肥 黑龙江 香港
黄山 济南 昆明 南京 上海 沈阳 台北 西藏 武汉 西安 郑州
【特別推荐】




【世界精品最新动态】
北美餐饮指南
德州旅館商務網
旗舰旅馆,网上订位!
巴哈马海滨豪宅
精品巨献,买名贵钟表
房屋贷款,最新利率
ICG 电脑

【世界名人网上调查】

【世界名人信息发布】
美国公司合作机会
中国招商合作项目
美南经贸网
第三界中国互联网大赛
第二届中国金鹰电视节
中文媒体总汇
网上电台直播
网址精选

【华人名人企事业家】

TBS_125x125_2

【加盟世界名人网络】
申请主持名人频道
申请Z-Club
书栅
电子商务沙龙
海外华人社区公告栏
地产专家
本页设计:007
欢迎来信/联系/技术支持/广告联系/网络维护: info@zzi.net
最新上市 海角芦荟 - $15.00   牛初乳 - $13.60   V-4 MEN - $19.90   VNOX - $72.00   Please Call at Houston 832-724-6288     www.vitalabs.com                           最新上市 吕氏肝健宝 -   吕氏清肺宝 -   吕氏抗癌宝 -   Please Call at Houston 832-724-6288, Toll Free: 1-877-981-5599

H-1B Application Saved from the Edge of Denial


BY Zhang Associates [ February 05, 2009 at 10:52:10 ]

Mr. Gupta first came to our firm in May 2008 after receiving an RFE for an H-1B non-immigrant petition that he filed himself earlier that April. The RFE letter posed three questions: first it asked about the nature and scope of Mr. Gupta’s proposed employment; second it asked about Mr. Gupta’s training in order to perform the necessary tasks of the offered position; finally it inquired about Mr. Gupta’s status in the period prior to the start of his H-1B employment. Mr. Gupta filed his H-1B petition by himself, and he had no idea how to handle the RFE. Knowing that an experienced and professional lawyer would be essential to his RFE case, Mr. Gupta sought help from Zhang & Associates, and retained Attorney Feng to draft his response letter.
After reviewing Mr. Gupta's case, Attorney Feng knew from experience that it would be difficult, but not impossible to get Mr. Gupta’s H-1B approved. She discovered two critical mistakes in the initial H-1B petition. Mr. Gupta had used an incorrect H-1B starting date of September 1, 2008 and an incorrect position title of “office and administrative support worker.” Mr. Gupta was extremely fortunate to receive an RFE instead of a denial since either mistake is usually deadly to an H-1B case.
Adding to the difficulties, Mr. Gupta’s B-2 status was set to expire in June 2008, several months before he would receive H-1B status if his petition were to be approved. Mr. Gupta had been previously unaware he could not directly change status from B-2 to H-1B while in the US because his B-2 would expire before the new H-1B takes effect. He requested Attorney Feng’s help in identifying a solution to this issue as well.
In the RFE response letter, Attorney Feng addressed the mistakes made in Mr. Gupta's petition as well as the questions posed in the USCIS RFE letter, hoping to save Mr. Gupta's case from these potentially costly errors.
The first error in Mr. Gupta's petition was an incorrect starting date. H-1B is a non-immigrant status that allows U.S. employers to offer temporary work to qualified foreign individuals in specialty occupations and other qualified employment positions. Under current immigration law, there is an annual cap of 65,000 on the number of H-1B admissions allowed for a particular fiscal year which begins on October 1st of each year. There are some H-1B petitions that are not counted against the quota, but because Mr. Gupta had not been counted against the H-1B quota in the past six years and his employer was not quota exempt, his application was subject to the H-1B cap. Applications for the upcoming fiscal year may be filed starting April 1st, so in Mr. Gupta's case, the ideal filing date was April 1st, 2008.
However, because Mr. Gupta's petition had a start date of September 1st, 2008, he was actually seeking employment to begin during the 2008 fiscal year, not the 2009 FY as he had intended. Without correction, Mr. Gupta's application would have been counted against the already used up 2008 FY quota. Fortunately, this mistake had gone unnoticed, and Attorney Feng was able to address it in the RFE response draft by requesting that the start date be changed to October 1st, 2008.
The second mistake in Mr. Gupta’s petition was an incorrect position title of “office and administrative support worker.” Because one of the requirements of an H-1B petition is a proposed job offer in a specialty occupation, it is not enough that the alien beneficiary meets the minimum requirements for receiving an H-1B; the proposed job offer must also qualify as a “specialty occupation.” The USCIS defines a specialty occupation as a job that requires a theoretical and practical application of highly specialized knowledge and that requires a bachelor’s or higher degree (or its equivalent) in a specific specialty.” Owing to knowledge of legal precedent, Attorney Feng knew that a position under the title of “office and administrative support worker” would not normally be considered a qualified specialty position. That is also the reason why the RFE asked about the nature and scope of Mr. Gupta’s proposed employment and his training in order to perform the job.
The RFE letter would need to prove that Mr. Gupta’s position was in a complex and specialized business and that his job duties required at least a bachelor’s degree in order to answer the USCIS’s questions.
The RFE response letter detailed the nature of the employer’s business and the exact position description and time breakdown to reinforce that the complexity of Mr. Gupta’s responsibilities would require at least a bachelor’s degree. The letter also compared the offered position to other positions of a similar level at different company’s and at the petitioning business to demonstrate that it was industry-wide practice to require a bachelor’s degree or higher. Further, in order to address the second question in the RFE letter, Attorney Feng noted that Mr. Gupta had obtained his B.S. in a business-related field from a well-respected international university and that he had more than four years of working experience in administration.
Yet, even with these points answered, Mr. Gupta would still need to demonstrate that, if he was going to remain in the US until the start date of his H-1B, he would maintain legal status throughout that period. Otherwise, Mr. Gupta would have to indicate the overseas consular office where he would go for his H-1B visa. Since Mr. Gupta did not want to leave the US during the gap between his B-2 and H-1B statuses, Attorney Feng suggested that he enter an advanced English language program and transfer from B-2 to F-1 student status to cover the gap between his B-2 and H-1. The valid F-1 status would allow Mr. Gupta to change to H-1B status in the US and not have to go abroad for consular processing. It would also ensure that he maintained a valid legal status up until his H-1B starting date. Following Attorney Feng’s suggestion, Mr. Gupta filed an I-539 change of status application and got a receipt notice before submitting RFE response. Attorney Feng then addressed his pending I-539 application in the response draft and requested a change of status in the United States.
Three days after filing, Mr. Gupta received his F-1 approval notice and H-1B approval notice with 1-94 card on the same day. Mr. Gupta was again very fortunate because his F-1 application had been approved before his H-1B entered into effect on October 1, 2008. The timing and order of approval is important because the USCIS will typically follow the “last action rule” when determining an individual’s legal status. According to the “last action rule,” when there is more than one case pending, the last action of the USCIS, which can be the approval of an individual’s petition or the entering into effect of an approval, will determine an individual’s status. So in Mr. Gupta’s case, if the F-1 change of status was approved after October 1st, Mr. Gupta’s status would be returned to F-1 even though his H-1B had already entered into effect. If this had happened, Mr. Gupta would have had to leave the country to apply for an H-1B visa overseas to regain H-1B status. Even though it was unlikely that his I-539 would be approved after October 1st because it was submitted in May, there was still a slight risk. Regardless, since his F-1 was approved before October 1s, Mr. Gupta successfully changed his status from B-2 to F-1 and had his F-1 cover the gap, setting him up to change from F-1 to H-1 on October 1st without leaving the country.
Mr. Gupta was extremely excited to receive both approval notices on the same day and wrote back to Attorney Feng thanking her for her hard work and expertise. Attorney Feng was also delighted at the news, particularly considering the odds Mr. Gupta originally faced. While Mr. Gupta was incredibly lucky at many points throughout his case, the success of his case shows the importance of knowledgeable and professional attorneys when applying for any non-immigrant status. If aliens want to file a petition by themselves, they also need to study related immigration laws thoroughly and fill out the application very carefully. Sometimes immigration applications cannot afford even the slightest error.

Special notice:
At 6:00pm~7:30pm CST on Feb. 13, 2009, Attorney Jane Xu will hold a Seminar in English at our Chicago office. She will talk about H-1B, NIW, EB-1and PERM, etc. If you are interested in this seminar, please click the following link to register:
http://survey.constantcontact.com/survey/a07e2gcmzlgfqqrqp0s/start


media

CN-Mall BookShelt NEWS HCCBBS RADIO STATION CHAT ROOM
Store Front ZZI.Net GoldenSoft Web Site Search Classified Ads Members
© Copyright Information Contact Group - HCCBBS 1996-2006 All Right Reserved.
Linlin's Art Studio
Design by Linlin's Art Studio