With H-1B filing season upon us as of April 2, 2012, we take this opportunity to remind you that although there has been slow but steady economic recovery over the last few years, the H-1B cap is expected to be reached much faster this year. This, coupled with a recent NFAP Policy Report Analysis
released this month citing case denial rates of 17% with a staggering RFE (Request for Evidence) rate of 36%, sends a clear, "culture of no" message that USCIS is making it more difficult for skilled foreign nationals to work in the USA with increasing denial rates for both the H-1B and L-1 visa programs.
The NFAP report states, "Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States beyond the reach of USCIS adjudicators and U.S. consular officers."
Small to medium-size companies and IT consultants and staffing agencies often bear the burden of these overbearing RFE's. Working with smart immigration practitioners and preparing your case strategy in advance to address both your strengths and weaknesses, will pay off greatly. Here are some tips that we highly recommend be incorporated in your filings:
1) Incorporate a detailed brochure and description of the employer's products or services and why you require a professional with a bachelor's degree to perform the offered position. Include promotional materials, press releases or news articles to illustrate the nature of the business, new trends and growth factors
2) Include a copy of your corporate tax return or financial statements
3) Explain in detail why the position cannot be performed by an employee w/o a bachelor's degree; i.e. is it standard in your industry? Provide detail (such as examples of work to be done) concerning the complexity of the position
4) Provide a real, detailed job description with the percentage of time spent on the duties of the position. Further explain any discretionary judgment that the employee will have in their job and other such areas of responsibility that are demanding or highly advanced
5) Provide evidence that you have a current and past practice of hiring bachelor's degree employees for the subject position
6) IT and staffing agencies must be prepared to evidence the "employer-employee relationship" in H-1B offsite placement work situations by clearly evidencing the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of the employee. (based upon the Neufeld Memorandum of January 10, 2010)
Again, we emphasize that planning in advance for successful case approval is imperative. We hope that you will find this information helpful. If you'd like to set up a time to discuss your case with our office or to engage our services, please feel free to contact us.