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Unique H-1B Issues that Face IT Consulting Firms this RFE Season

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Sheila Danzig

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Recently a lawsuit was filed against USCIS by ITServe Alliance.  This is a organization of US IT service companies that had previously petitioned USCIS against new changes to H-1B adjudication rules. 

The new rules state that for IT consulting companies that contract H-1B employees to work off-site to meet H-1B requirements, they had to prove the H-1B employee would have “Guaranteed specific and non-speculative work assignments” scheduled for the entire duration of their three-year H-1B visa.  This rule was applied to new employees seeking H-1B status for the first time, and for existing H-1B employees seeking visa renewal.

This new rule has taken a toll on IT consulting firms across the United States. Last fall at the end of FY2018, a study of the 30 top employers that sponsor H-1B employees found that while IT consulting firms saw 20-80% rates of H-1B Denials among their sponsors, non-consulting companies only saw a 1% Denial rate.  Consulting firms were answering RFEs and Denials well into the fiscal year the sponsored employee was hired for, cutting into business productivity and damaging relationships with customers because new hires could not start on time because they were still engulfed in a fight for their right to work.

While USCIS claims that this new rule is simply a reinterpretation of existing statutes, ITServe Alliance disagrees.  Regardless, USCIS is still the gatekeeper of you, or your employee or client’s visa status, and that means you must be prepared to prevent and answer the potential RFE or Denial that is likely to arrive this summer if you or your employee or client works for an IT consulting company.

Here is what you need to do to get this kind of RFE or Denial overturned:

1. Clearly show three years of guaranteed and non-speculative work for the H-1B employee.  This means providing a detailed itinerary of the employee’s next three years on the job bolstered by customer contracts and timelines.

2. Clearly show that the employer-employee relationship will be maintained even when the H-1B employee is working off-site.  This means providing a clear breakdown of the day-to-day duties and responsibilities of the employee along with their means of reporting to the employer.  Clearly show avenues of control and accountability as you will need to prove that the employer maintains the ability to hire, fire, promote, and otherwise control the work the H-1B employee does throughout the duration of the H-1B visa, regardless of which site they are working at.

3. Include an expert opinion letter that analyzes, ties together, and lends credibility to the evidence and documentation you provide.  This expert must have extensive experience WORKING IN the IT consulting field, and not simply be an IT instructor or professor.  At TheDegreePeople.com, we have the right experts on hand 24/7 to write the opinion letter you or your employee or client needs to serve a strong case for approval.

4. Make sure all of your bases are covered.  When USCIS finds a red flag in a petition, they look deeper, and they usually find more aspects of a case to take issue with.  Education issues, wage level issues, and specialty occupation issues are common features of the first or second round of RFEs. 

Always take the opportunity to prevent a second round of RFEs when answering the first.  For a free review of your case, visit ccifree.com/.  We will get back to you in 48 hours or less.

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