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How do We Deal with the Increase of H-1B RFEs

BY Jing Amy Feng [ August 10, 2010 at 00:09:57 ]

At the 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm—a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.

The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.

How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:

1. Prepare the employment contract at the beginning of the process and be sure to clearly show the employer’s control;

2. In order to prove the control, please focus on the control of pay, day-to-day management, providing equipment and tools, and direct review of the employee;

3. If there is “consulting” involved, the following documents are needed: an employment contract, a contract with clients, a clients’ letter proving that the employer has the control of the employee, the employer’s handbook showing who is reviewing the employee’s work, and pay stubs;

4. Prepare initial H-1B filing the way you respond to the RFE—try to answer all possible RFE questions in the initial filing;

5. H-1B extension is not necessarily easier than the first H-1B. Prepare H-1B extension just like the initial petition.

In addition, USCIS released the latest H-1B visa information on August 3, 2010. As of July 30, 2010, USCIS reported that 27,300 capped petitions had been filled and 11,600 spots for advanced degree holders had also been filled. Every year, there are 65,000 regular spots (commonly known as “cap petitions”) and an additional 20,000 spots for advanced degree holders. Due to the bad economy, H-1B availability will likely cease in March 2011 at the current pace.

*Attorney Jing Amy Feng is an associate attorney with Zhang & Associates, P.C. at the New York Office (www.hooyou.com). She has extensive experience in employment/business immigration, with a proven record of many successful NIW, EB-1, H-1B, and PERM cases. Amy received her LLM degree from St. John’s University School of Law. She may be reached at jfeng@hooyou.com.

An Open House (Offices) Invitation:

We will open our Los Angeles and Silicon Valley offices to the public at 9:30am-1:00pm on Saturday August 14, 2010. Complimentary food and drink will be provided. You are very welcomed to visit those two offices and we provide free consultation on site.

Time and location of the open house:

Silicon Valley, CA
Time: 9:30 am ~ 1:00 pm PDT, Sat. August 14, 2010.
Host: Attorney Jerry Zhang
Address: 2225 E. Bayshore Road Suite 200
Palo Alto, CA 94303

Los Angeles, CA
Time: 9:30 am ~ 1:00 pm PDT, Sat. August 14, 2010.
Host: Attorney Daqin Zhang
Address: 70 S. Lake Ave, suite 920
Pasadena, CA 91101

We hope to see you at our LA or Palo Alto offices.


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