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After the H1B Receipt in Lottery - Next Steps - Approval or RFE or NOID with FAQs

Hire IT People, Inc

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On behalf of Immisupport.com, we would like to congratulate all of you, who got the H1B picked in the lottery and received H1B receipt notices. We feel sorry for Aspirants who's petitions are not picked in the lottery, please don’t be depressed, it’s not the END of the world.

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H1B petitions that were filed under the Premium Processing Program

USCIS has begun adjudicating the premium processing petitions on May 20, we heard that some Employers already received approval notices for H1B premium processing petitions. See official here

Time Frame: After USCIS begins adjudicating the Premium Processing H1B petitions, USCIS will send a response within 15 calendar days. Yes, calendar days including Saturdays and Sundays. The clock has begun on May 20, 2019, and within 15 Days you should either get approval or an RFE (Request for Evidence).

RFE (Request for Evidence): If an RFE is issued the clock will reset to another 15 calendar days from the date they receive a response from your H1B Employer and/or Attorney on record.

Approval Notices: If your case is approved, your H1B Employer will first receive an email stating that the H1B is approved followed by a physical H1B approval notice.

H1B petitions that were filed under Normal processing

Time Frame: USCIS has begun adjudicating the H1B petitions filed under normal processing program on or after April 25.  Adjudication of petitions may take anywhere between 1 month to 6 months, you may receive an approval notice or an RFE within this time.

RFE (Request for Evidence): If an RFE is issued, USCIS will adjudicate the H1B petition in 60-90 days from the day they receive the response from your H1B Employer/Attorney

Approval Notices: If your case is approved, your H1B Employer will receive a physical H1B approval notice. For normal processing H1B petitions, H1B Employer will NOT receive any email notifications.

YOU MAY CREATE AN ACCOUNT AT USCIS.GOV WEBSITE TO RECEIVE EMAIL AND TEXT ALERTS FOR YOUR CASE, ANY CHANGE IN CASE STATUS WILL BE IMMEDIATELY NOTIFIED BY USCIS.

RFE Section

What is an RFE and why USCIS sends an RFE?

RFE stands for Request for Evidence. While adjudicating an H1B petition, if USCIS is not satisfied with the provided documentation and/or information; USCIS will send a letter asking for more information to the H1B Employer/Attorney. USCIS also allows up to 3 months for sending a response. The processing time will then depend on how soon your H1B Employer/Attorney sends a response to the RFE Notice.

While applying for an H1B visa with the USCIS, proper documentation is the key to avoid RFEs. The employer documentation is exhaustive and differs from Employer to Employer. I will post a separate article with an exhaustive list of documents, explaining the importance of each document, please subscribe to this blog or Facebook LIKE to get updates!

What kind of RFEs can I expect?

The most common requests for evidence are as follows and USCIS may ask for one single item or all of the items as listed below:

  • Specialty Occupation 
  • Education of the beneficiary, foreign equivalency evaluation (if overseas education like India)
  • Availability of a Project or Client with the H1B Employer
  • Employer-Employee Relationship, Client Letters
  • Employer Business
  • Maintenance of Status for beneficiaries in the United States (Filed under Change of Status to H1B)

RFEs on Specialty Occupation (This is now a nightmare and most RFEs/Denials are based on the Specialty Occupation)

USICS needs information from the Employer to confirm that the offered job qualifies under specialty occupation.  In other words, the job needs someone with a specialized knowledge possessing at least a bachelor’s degree in a related field. USCIS will specifically request the H1B Employer to explain the nature and complexity of the job and why it requires someone to possess a bachelor’s degree to perform the job. Your H1B Employer should explain the job in detail with examples; time spent for each task/duty on a weekly basis. It is the responsibility of H1B Employer to show evidence to USCIS and provide proper documentation.

Example:

To perform a Job of a Programmer/Analyst one may require a bachelor’s degree and the occupation Programmer/Analyst qualifies under specialty occupation

To perform a job of an Administrative assistant, one does not require a bachelor’s degree and the occupation Administrative Assistant will NOT qualify under specialty occupation

It is very important to note that USCIS will not simply go by the Job title while adjudicating the H1B petitions, they will rely on job duties.

What is a Specialty Occupation?

 In order to perform services in a specialty occupation, you must meet one of the following criteria:

  • Hold a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university
  • Possess a foreign degree determined to be equivalent to a United States baccalaureate or higher degree as required by the specialty occupation from an accredited college or university
  • Have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or 
  • As determined by USCIS, the equivalent of the degree required by the specialty occupation acquired through a combination of education, training, and/or experience. Specialty occupations may include but are not limited to, computer systems analysts and programmers, physicians, professors, engineers, and accountants.

RFEs on Education and Experience

The offered job should be directly related to the field of study. If you have a US Master’s Degree in Chemistry and your H1B job is Programmer/Analyst which not related, it would trigger an RFE. USCIS will send an RFE asking the H1B Employer to show the evidence “How the beneficiary will work as a Programmer/Analyst when his/her field of study in Chemistry”

The educational evaluation for overseas degrees is usually ignored while sending the H1B Petition, you may have a BS degree in Computer Science or an MCA; USCIS must get a document stating the equivalency of your Education in the United States to determine the level of your education. For Indian degrees like IIT, IIM are exempt from this requirement.

What is an Educational Evaluation or Foreign Credentials Evaluation?

Your foreign education and/or experience is evaluated by a Private Agency or a University Professor to determine your educational equivalency when compared to the United States degree. Since your education is from another country, there is no way USCIS can determine that you have a valid degree.

In some cases, where your education is NOT directly related to the job offered, an evaluator may use your experience to determine the equivalency. Every 3 years of work experience is counted towards 1 year of college in a related field.

Example: Bachelor’ in Engineering (Mechanical) + 3 Years of IT Experience = Bachelor’ in Engineering (Information Technology or Computer Science)

My H1B was applied as a Programmer/Analyst and I have a non-related degree with IT Experience, equivalency evaluation has not been submitted, would I get an RFE?

Yes, most likely. USCIS must determine that you qualify for the job and you have related degree and/or experience.

If you have any questions on the Education part, please post in comments, one of our H1B supporters is a professional educational evaluator and she will answer your questions.

RFEs on Availability of a Project or Client

This is the most important item, especially when an H1B is filed by a Consulting Firm. If you’re H1B was applied by a large company with A/K/A full-time basis, you may not worry about an RFE for this item.

But, for IT consulting firms, it is a big problem to show sufficient H1B specialty work for the requested H1B period of Employment.

USCIS wants to confirm that the H1B Employer has sufficient specialty occupation work available with the H1B Petitioner. A petitioner may have good revenue and bank balance to pay the salary, unlike the GC process; ability pay is not required for H1B petitions.  H1B Employer must demonstrate the following:

  • A viable existing internal/in-house project with Market analysis, customer base, and competitor analysis to employ the beneficiary under H1B basis

OR

  • A contract/client letter from a Client showing that a Specialty occupation work available for the requested H1B period of Employment

RFEs on Employer-Employee Relationship

This is a trivial RFE and H1B Employers/Attorneys have a tough time responding RFEs related to Employer-Employee Relationship

What is this Employer-Employee Relationship?

On January 08, 2010, USCIS Director issued a Memo concerning H1B Employment and how the H1B Worker will be controlled by the H1B Employer while working at a third-party client site.  See the official Memorandum. 

The memorandum also discusses examples of evidence the petitioner may submit in order to establish that an employer-employee relationship exists and will continue to exist throughout the duration of the requested H-1B validity period.  Examples of that evidence include a complete itinerary of services or engagements, a signed employment agreement with the beneficiary, and/or relevant portions of valid contracts statements of work, work orders, or service agreements with the end-user client.

Common Law (Internal revenue Service):  Under the common law rules, every individual who performs services that are subject to the will and control of the employer, as to what must be done and how it must be done, is an employee.

However, H1B Employers cannot simply state that we will be paying the beneficiary and he/she is our Employee. There are a number of factors beyond Payroll, benefits, performance reviews to be considered while providing a response to such RFEs. If the H1B Employer is not careful while sending a response for this item, it may end up in your case being denied.

On February 18, the USCIS held a "Collaboration Session" in Washington, D.C., to address the growing concerns about the implications of the Neufeld Memo. Approximately 500 people (400 via teleconference) attended the two-hour session, in which USCIS officials responded to the "unintended consequences" caused by the Neufeld Memo.

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Please note that I have attended this conference during 2010

H1B Employers must demonstrate how they control the beneficiary’s employment while H1B workers are placed at a third-party client site, it is a common scenario if your H1B Employer is a Consulting firm. see illustration below.  H1B Employers must demonstrate their ability to supervise and control H1B Employee’s Work/Product and the ability to hire/fire the H1B Employee.  Also, demonstrate that only H1B Employer has the right to assign additional duties to beneficiary NOT the Vendor and/or Client.

Citing the H-1B regulations, the Neufeld Memo explains that a U.S. employer that files an H-1B petition must have "an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee." Adjudicating officers are instructed to weigh the following factors when determining whether a valid employer-employee relationship exists:

  • Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
  • If the supervision is off-site, how does the petitioner maintain such supervision, i.e., weekly calls, reporting back to the main office routinely, or site visits by the petitioner?
  • Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
  • Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
  • Does the petitioner hire, pay, and have the ability to fire the beneficiary?
  • Does the petitioner evaluate the work-product of the beneficiary, i.e., progress/performance reviews?
  • Does the petitioner claim the beneficiary for tax purposes?
  • Does the petitioner provide the beneficiary any employee benefits?
  • Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
  • Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
  • Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

 The Memo emphasizes that the determination of whether an employer-employee relationship is valid should hinge on the extent to which the petitioner has the right4 to control the beneficiary's work, i.e., control over when, where, and how the beneficiary performs the job. In addition, adjudicating officers should consider the totality of the circumstances when weighing these factors, including the nature of petitioner's business and an H-1B beneficiary's work. Furthermore, the petitioner must maintain the right to control the beneficiary's work throughout the H-1B validity period in order to constitute a valid employer-employee relationship in the H-1B petition context.

How is this possible, I will be working at the Client site, I may be reporting to the client manager?

Unfortunately, based on the Neufeld Memo and regulations, H1B Employers must demonstrate that your H1B Employers controls your Employment.

What type of evidence can we submit to satisfy this requirement?

In addition to analyzing the parameters of a valid employer-employee relationship, the Neufeld Memo specifically includes the following list of the types of evidence that an H-1B petitioner may submit with an initial petition in order to demonstrate that a valid employer-employee relationship will exist for the duration of the H-1B validity period:

  • A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names, and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
  • Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
  • Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
  • Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner's employees will be utilized) that establishes that while the petitioner's employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
  • Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provides information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
  • Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner's discretion over when and how long the beneficiary will work, the method of payment, the petitioner's role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
  • A description of the performance review process; and/or
  • Copy of petitioner's organizational chart, demonstrating the beneficiary's supervisory chain.

The evidence that H1B Employers can submit may vary, if you have a particular situation, please comment below and I will provide information.

There is some good news that USCIS has relaxed this regulation with FAQs, by adding that a Client letter may not be required if the following is met. 

Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

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If you have a situation or I have missed anything, please post under comments!

RFEs on Employer Business

USCIS must determine that the Employer is in the business and satisfy the requirements of the United States Employer. There are a number of documents your Employer can submit based on the type and size of the Employer

“Under C.F.R. 214.2(h) (4)(ii) “United States employer,” is defined as follows. United State employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work within the United States;

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and

(3) Has an Internal Revenue Service Tax identification number.”

What documents can the H1B Employer submit to satisfy this requirement?

  •  Tax ID Letter from IRS
  •  Tax Returns
  •  Company registration documents
  •  Office Lease or Ownership
  •  Telephone or utility bills
  •   Website screenshots
  •   Yellow Pages or Google Listings

RFEs on Maintenance of Status for beneficiaries in the United States (Filed under Change of Status to H1B)

These items cover RFEs issued only for H1B petitions for beneficiaries who are presently in the United States to seek a change of Status to H1B as of October 01. Based on your present status, you may be required to submit the following information.

  •          Change of Status from F1/OPT/M1/J1
  •          All forms I-20 and OPT Cards
  •          Confirmation of tuition payments to school
  •          Eligibility of Cap-Gap (if any)
  •          Change of Status from F2/J2
  •          All form I-20s of Spouse
  •          Confirmation of tuition payments to school
  •          Marriage Certificate
  •          Change of Status from L1
  •          Paystubs as of H1B filing date
  •          L1/I-797 validity until September 30 or I-94
  •          Change of Status from L2
  •          Paystubs of the spouse as of H1B filing date
  •          L1/I-797 validity of spouse until September 30 or I-94
  •          L2/I-797 validity until September 30 or I-94
  •          Marriage Certificate
  •          Change of Status from H4
  •          Paystubs of the spouse as of H1B filing date
  •          H4/I-797 validity until September 30 or I-94
  •          Marriage Certificate
  •          Change of Status from B1/B2
  •          I-94 Validity until September 30

Conclusion on RFEs: USCIS may request all the above information or a combination of information based on the documents initially submitted with the H1B petition. I did my best in providing the information on RFEs, please comment if I have missed anything.

NOID (Notice of Intent to denial) – What is this?

On rare occasions, USCIS issues a NOID on particular H1B petitions, when USCIS determines that there has been misrepresentation or fraud while filing the H1B petitions. The NOID may be sent before an RFE or after an RFE response is received. I will not be discussing much about the NOIDs; I will post another Article with respect to NOIDS.

H1B Approval Notices Section

Hooray… The H1B is approved, what are the next steps?

H1Bs with COS (Change of Status as of October 01)

If you are in the United States and your H1B is approved with COS as of October 01, you may begin employment.

Do I require H1B Visa Stamping?

NO. You do not have to stamp an H1B visa to begin work as COS is approved. However, you need a visa if you want to travel.

H1Bs with Consular Processing

Presently in the United States:

Option # 1: Your Employer may file an amendment and change status to H1B at a later point of time when there is a project (usually with consulting firms)

Option # 2: You may go to a US Consulate to get an H1B visa stamping and return on H1B

Presently Overseas:

H1B Employer needs to send an H1B petition package to obtain an H1B visa stamping at your home country.

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I hope this article provides information to help you after your H1B is filed, please let me know if I have to cover anything or you have any suggestions by commenting below.

 



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Very well explained, can you explain about the SOC codes, mine is filed under 15-1132.  Thanks Monica

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