In the recent concluded 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. Complete the chain of documents starting from the actual Petitioner till the end-client;
2. Things get more complicated when there is one or two layer between you and end-client. Need to get letter from each mid-vendor;
3. Prepare the employment contract at the beginning of the process and be sure to clearly show the employer’s control;
4. 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;
5. 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;
6. Prepare initial H-1B filing the way you respond to the RFE—try to answer all possible RFE questions in the initial filing;