Murthy Team’s H1B Successes, Despite Tougher Standards07 Jan 2016
In recent years, employers filing H1B petitions have experienced tougher adjudication standards. The restrictive interpretation of critical H1B elements requires the submission of extensive evidence in many cases. At the Murthy Law Firm, we receive calls on a daily basis from employers struggling to answer requests for evidence (RFEs), as well as from those who have received H1B petition denials. We have developed innovative strategies to help our clients overcome difficult situations resulting in a high overall H1B petition success rate.
Overall Strategy Prior to Filing H1B Petitions
In order to properly prepare an H1B petition, it is necessary to understand the key requirements and common problem areas. These matters must be anticipated and the overall case strategy must take into consideration each of the potential concerns that may be raised by the U.S. Citizenship and Immigration Services (USCIS), ideally prior to preparing and filing the H1B petition.
Common Areas of Concern in H1B Petitions
H1B petitioning employers should consider the following issues before filing H1B petitions:
- Is the job offered in a specialty occupation? (i.e. Does the job offered require at least a bachelor’s degree in a specific field?)
- How does the potential employee’s field of education and experience give the individual the knowledge and skills needed to perform the duties of the offered position?
- In the context of companies engaged in placement of employees at third-party sites, are the ever-problematic end-client and mid-vendor letters and/or contracts in order?
- Are the employer / employee relationship and control in third-party placement employment established?
- Are the employer / employee relationship and control in nontraditional employment methodologies (such as telecommuting, and entrepreneur H1Bs) established?
- Has it been established that newly formed companies have sufficient H1B level work and sufficient income to employ an H1B worker?
- Have concurrent H1Bs with cap-exempt and cap-subject employers been considered?
- Has it been established that the individual is cap-exempt?
- Has it been established that an institution is cap-exempt?
In some cases, the facts and evidence are fairly straightforward. In other cases, however, it can be difficult to contend with these elements since the evidentiary requirements imposed by the USCIS do not always comport with business reality.
Job Categories and Education Must Match
Proper job categorization is one key to contending with the need to show that the position is a specialty occupation for which the beneficiary is qualified. We are often approached by employers and H1B workers who have been issued RFEs and denials due to the overuse of generic job titles and categories. If a position genuinely requires at least a bachelor’s degree in a particular subject, but the employer uses the wrong title and/or job code, the case is not likely to succeed. For example, if the job requires a degree in biological sciences, but has some computer-related duties, it is likely to be denied if it is categorized under a purely IT code. The legal team at the Murthy Law Firm is extremely careful about all such issues, as they are the foundation of each case.
Avoid Errors and Inconsistencies Within Documents
Another common problem seen by Murthy attorneys involves errors and inconsistencies in the information and documentation submitted to the USCIS. These mistakes typically are caused by either the mindless overuse of employer templates or failure to carefully review all supporting documents. While templates are valuable and efficient tools, it can be easy to mistakenly include information from an unrelated case. We have seen incorrect names of the parties, incorrect addresses, improper job duties and titles, and a variety of similar errors when employers and employees contact the Murthy Law Firm to determine whether their cases can be salvaged.
All documents provided with the H1B petition should be carefully reviewed, even if they are fairly standard documents. We review our case documents throughout preparation. The attorney and paralegal assigned to a case each review the final petitions and exhibits multiple times. Internal control measures are employed to identify common problem areas and assure consistency throughout the H1B petition.
Murthy Team’s Success: Innovative Strategies & Arguments
It is impossible to lay out all the documentation strategies and legal arguments that the attorneys at the Murthy Law Firm have developed internally and executed in order to help our clients obtain H1B petitions approvals. Sheela Murthy and her team work to develop winning legal arguments, based on extensive research and decades of collective experience. They closely keep abreast of proposed and finalized changes in law, policy, and procedure, as well as general adjudications trends. The internal systems and strategies used at the firm are made to evolve and adapt easily.
In today’s global economy, many U.S. companies have discovered that they must supplement their workforce with foreign national workers who possess specialized education and skill sets. Yet, the H1B visa adjudication terrain has become increasingly complex. The Murthy Law Firm utilizes its breadth and depth of experience and knowledge to guide clients through the world of immigration law in order to help them meet their business goals.
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