USCIS Completed Data Entry for FY2020 H1B Cap

USCIS has issued the following statement:

USCIS has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in our computer-generated random selection process, including those selected under the U.S. advanced degree exemption. As in previous years, we will now begin returning all H-1B cap-subject petitions that we did not select and will issue an announcement once we are done notifying petitioners. Due to the volume of filings, we cannot provide a definite time frame for returning unselected petitions. We ask petitioners to wait to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition that we have returned.

Additionally, we may transfer some Form I-129 H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance the workload and enhance efficiencies. If we transfer your case, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.


CONFERENCE CALL: H-1B 2019 Lottery, Lessons Learned From 2018

>>ATTENTION: JOIN US FOR A CONFERENCE CALL ON THURSDAY 3/14 AT 1PM EST (Details to follow). Review the 2018 cap season RFEs/Denials, and New Strategies for filing cap cases in 2019. We will discuss issues such as Specialty Occupation, Employer-Employee Relationship, Availability of Work Off-site and On-site, Beneficiary Qualifications, Maintenance of Status, LCAs, and Itineraries. We will also discuss New Strategies to proactively address these issues and improve success in the 2019 cap season.

Top 5 Strategies For H1B Specialty Occupation (2019 ed): Improve Your Chances

>>ATTENTION: JOIN US FOR A CONFERENCE CALL ON THURSDAY 3/14 AT 1PM EST (Details to follow). Review the 2018 cap season RFEs/Denials, and New Strategies for filing cap cases in 2019. We will discuss issues such as Specialty Occupation, Employer-Employee Relationship, Availability of Work Off-site and On-site, Beneficiary Qualifications, Maintenance of Status, LCAs, and Itineraries. We will also discuss New Strategies to proactively address these issues and improve success in the 2019 cap season.

With the increase of Request For Evidences (RFEs) and denials that were issued by USCIS in the 2018 cap filings, petitioners must take a more proactive approach to filing, and should not file H-1B cases as they did in the past. We are utilizing new legal strategies to file proactively and address potential issues as raised during the 2018 cap season. By doing so, we are strengthening cases upfront, with the goal to minimize the number of RFE inquiries. 

When USCIS reviews a case and finds that evidence is lacking, USCIS may issue a RFE, requesting the missing evidence. Many of the RFEs issued in 2018 were 10 to 15 pages long and required a great deal of effort on behalf of petitioners to address.

Once a petitioner responds to the RFE, USCIS issues an approval or denial, based on a review of the RFE materials submitted. It is critical to understand the RFEs that were issued in the 2018 cap season and address them in the 2019 filings to avoid denials.

Below are a few examples of the strategies we are employing in 2019 to address one of the most prevalent RFE issues of the past year – whether a job is in a Specialty Occupation. In other words, USCIS is questioning whether the offer position requires (a) theoretical and practical application of a body of highly specialized knowledge and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum entry into the occupation.

Here are the TOP 5 strategies we are using this 2019 cap season:

1.    Select appropriate SOC codes – make sure that the job duties reflect the correct and appropriate SOC code in the LCA. This involves strategy and discussion between your legal and HR teams, as it involves an analysis of the job duties compared to certain occupations that qualify as Specialty Occupation. Also, certain occupations that may normally be problematic as Specialty Occupations, may qualify as a Specialty Occupation, if handled appropriately at the filing stage.

2.    Obtain Specialty Occupation Opinions / Industry Opinions DURING FILING –identify employees or colleagues who have significant experience in the relevant field, and work with your attorney to determine whether they qualify as industry expert, and have them write an opinion as to why the job is a Specialty Occupation. We provide the experts with samples and have a training session for them in opinion writing. Using a known person costs little to no money (if needed, a professor’s opinion can be obtained if there is still a RFE issued) and USCIS may accept this industry opinion at filing stage, thereby preventing a Specialty Occupation RFE.

3.     Use the right educational requirements in the petitioner, client and vendor letters. Ensure that the educational requirements stated in those letters correspond to the SOC code in the LCA, and therefore strengthens the Specialty Occupation evidence. We provide templates and samples that have successfully worked in past cases for petitioners, end-client, and vendors to use. We also have conference calls/information sessions for end-clients and vendors, to assist in addressing USCIS requirements.

4.    Ensure that appropriate advertisements from other companies are provided up-front. This is a beneficial step because it establishes to USCIS that your requirements for the job are consistent with industry requirements. It is not beneficial to submit advertisements of a job that states various unrelated educational fields as a requirement or may state different experience as a requirement. USCIS often dismisses advertisements when ads are not comparable to the job, meaning they have different requirements than yours. For example, if your job requires a bachelor’s degree in computer science, a comparable job would not require a master’s degree in electrical engineering. USCIS will likely dismiss this. We work with our clients to identify appropriate advertisements for submission to USCIS. 

5.    Show USCIS that the Petitioner hires individuals with similar requirements. Petitioners must categorize their employees per occupation. It is important to work with your legal team to do this appropriately. We work with our clients to ensure this evidence is presented in the strongest manner. For example, if the H-1B is being applied for a Software Developer, present the information in a manner that establishes that your company hires only software developers with qualifications which would make the position eligible as a Specialty Occupation. This is very tricky and is often mishandled when done haphazardly! Showing that a petitioner does hire individuals with the requisite qualifications into the same occupation is critical. However, not all employees will have the qualifications based on education alone, in which case, the categorization must be done with care, to show that all these employees are indeed qualified, and the job is therefore a Specialty Occupation.

We are employing these strategies at the filing stage in the 2019 cap season.  We also employ certain strategies for issues such as Employer-Employee Relationship, Availability of Off-site or In-house Work, etc.

Please feel free to contact us if you have any questions at 646-821-4000 or by email at mail@immlegal.com

To attend the conference call, please email us at mail@immlegal.com, and we will send you the dial-in information.

 We look forward to speaking with you!

H-1B: RFE Data and Reasons, A Must See

If you've followed the drama encircling H-1Bs, you would know that Request For Evidences (“RFEs”) have substantially increased in the past few months, effectively becoming a wall for highly skilled immigration. Below are extracts from a document provided by USCIS charting the trend of RFEs for the past 4 years. According to the data, the number of RFEs issued has steadily risen over the past few years. From Q1 of 2015 till Q1 of 2019, a significant upward movement of RFEs issued is evident.

The following chart shows that along with the increase in H-1B RFEs, there has been an approximately 20% decrease in the number of H-1B petitions approved after being issued an RFE. It is important to note that the odds of receiving an H-1B denial are much greater if appropriate documentation is not provided. The documentation must address USCIS’s requests.

 

The following chart shows H-1B approvals for the top 30 employers with the most initial and continuing approvals for FY2018. You may be surprised to find some of the names on this list received any denials at all! For example, Cognizant received thousands of denials! Take a look at some of these astounding figures. Companies such as Amazon, Apple, Google and the like have received multiple denials. These are large-cap companies that either have in-house specialty occupation work or strength to leverage their size and capabilities in obtaining the necessary documentation to address RFEs. They have the financial resources to hire expert evaluators to establish the job position is a specialty occupation and also to hire top-notch/competent attorneys to represent them; yet they too are facing denials!

Top 10 Reasons Why USCIS Issued RFEs (According to USCIS!)

According to a recent document published by USCIS, entitled "Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018", (LINK) the following are the top 10 reasons in order from most to least common reasons for why USCIS may issue an RFE:

1. Specialty Occupation
The petitioner did not establish that the position qualifies as a specialty occupation as defined in section 214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii).

2. Employer-Employee Relationship
The petitioner did not establish that they had a valid employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period.

3. Availability of Work (Off-site)
The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

4. Beneficiary Qualifications
The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation per 8 CFR 214.2(h)(4)(iii)(C).

5. Maintenance of Status
The petitioner did not establish that the beneficiary properly maintained their current status. This category is reflective of many different reasons that status may not have been maintained.

6. Availability of Work (In-house)
The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition.

7. LCA Corresponds to Petition
The petitioner did not establish that they obtained a properly certified Labor Condition Application (LCA) and that this LCA properly corresponds to the proffered position and terms of the petition.

8. AC21 and Six Year Limit
The petitioner did not establish that the beneficiary was eligible for AC21 benefits or was otherwise eligible for an H-1B extension as it appeared that H-1B had hit the six-year limit.

9. Itinerary
The petitioner did not meet the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B), which requires petitioners to submit an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of services to be provided.

10. Fees
The petitioner did not establish that they paid all required H-1B filing fees.

RAVAL, Sachin Ramesh

Sachin Raval Esq.