Difficult H1B RFEs - Considerations and Possible Strategies
Posted Jul 03, 2009
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Regular updates on the H1B cap count are posted on MurthyDotCom as the information is made available. One interesting development in the cap count is that the regular cap count decreased by more than 3,000 between May 22nd and June 12, 2009. The U.S. Citizenship and Immigration Services (USCIS) has explained this unusual occurrence as the result of cases that were denied, revoked, or withdrawn during the cap filing period. This highlights the difficulties experienced by some employers, particularly IT consulting companies, in obtaining H1B petition approvals. The issues employers face when they receive requests for evidence (RFEs) that simply have no winnable answer are addressed below.
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Typical Situation : Work Location H1B RFEs and Denials
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The problem of the unanswerable RFE generally stems from an H1B petition that was filed without awareness of the current USCIS expectations and adjudication standards. A common problem is the work location/s of the H1B employee/s. It is typical for a consulting company to file H1B petitions that provide their headquarters office as the work location. This generally is done because they do not know where the individual will really be working on the start date requested in the H1B petition. A project assignment would be located and matched with the employee sometime after the H1B has been filed. The USCIS may either have overlooked this issue in the past or it was not brought to their attention. In today's enforcement climate, however, this is likely to generate an RFE.
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The RFE in this type of case is likely to request contracts between the consulting company and the end client, as well as the mid vendor, if any, for the project. It is also likely to ask for a letter from the end client verifying the job duties and other details. If there is no such project, then the RFE is unanswerable. If a project has been located, but is not in the area of work submitted in the H1B filing (and covered by the labor condition application provided with the filing), the RFE cannot be adequately responded to and the H1B approval cannot be obtained. Or, if the project is in the right location, but the contract did not exist when the case was filed, the H1B petition will not be approved.
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Will Withdrawing the H1B Petition Result in More Problems?
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When the USCIS issues an RFE, pointing out fatal deficiencies in a case, the case itself clearly is going to be denied regardless of what is done. Thus, the focus for the company becomes damage control. The USCIS list of factors that trigger referrals for fraud detection includes withdrawals or abandonment after an RFE. Therefore, either withdrawing the case or ignoring the RFE could create problems for the employer. It may appear to the USCIS that the employer has something to hide or that the case that was filed was fraudulent from the beginning.
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There is no ideal solution for the employer when a case cannot be won. Withdrawal is the appropriate tact when an employer no longer can pursue a case. If this becomes necessary, however, the employer should consider supplying information or documentation to dispel the impression of fraud. Exactly what documents or information will serve this purpose is case specific and discussing the possibilities with your immigration counsel is a worthwhile investment of time and money.
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Re-File New H1B Petition if Appropriate
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Typically, when companies come to the Murthy Law Firm asking for assistance with unanswerable RFEs, the foreign national has been assigned to a project. Thus, while the initial H1B filing may be impossible to fix, the employer now has a valid H1B case. It is often possible to file the H1B petition again, in such a situation, properly supported with contracts and end-client letters.
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The option of re-filing remains available for all new H1B petitions; even for cap-subject cases, as of this writing. The re-filing option raises logistical concerns, if the individual was relying upon the first H1B filing in order to remain in the United States and work. These matters should be discussed with a knowledgeable immigration attorney, as there are problems with status and authorization for employment. Individuals may have some other options to consider, for example, through other H1B employers or as the dependants of their respective spouses.
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Conclusion
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Clearly, the best way to avoid the problem of the unanswerable RFE is to file cases that abide by H1B laws and requirements. Employers - particularly consulting companies - must understand that business-as-usual has changed with respect to what is acceptable in an H1B filing. The laws have not changed, but the application and enforcement of those laws has become much stricter. Many employers, who filed cases using strategies that may have worked in past years, now face the problem of difficult RFEs. They need to engage in damage control. Such employers should feel free to contact the Murthy Law Firm for guidance and possible options as to the best way to proceed to protect themselves, their companies, and their valuable employees.