|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.
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: