H-1B season is upon us! While employers and eager prospective employees rush to file the H-1B petitions to beat the H-1B cap, prudent filers and their attorneys will also pause to consider the types of documentation required for a successful filing. Remember, getting the petition in on time is just part of the game. The ultimate prize (a talented H-1B employee, or a coveted job, according to your perspective) comes only once the petition is approved. Having the petition approved is particularly tricky for consulting companies, in which employees, though controlled and directed by the H-1B employer, may work at a third party client site. When adjudicating petitions filed by consulting and staffing companies, USCIS is concerned with at least two additional points:
While it is challenging enough to document these issues for an H-1B transfer, for example, when the H-1B employee will start working immediately, it can become very difficult to document this for a position that will start in six months. What’s a careful employer to do?
Best practices for H-1Bs placed at end client worksites:
I can already feel employers rolling their eyes, about to tell me it’s impossible to get this documentation six months away from the start date. I get it! Here are some additional ideas to proactively address USCIS’s concerns:
It is critical to think outside the box in preparing H-1B petitions (or any type of immigration filings). It may not always be possible to obtain the specific document that USCIS is asking for, or that they typically request. But you must think about why USCIS requests that document, and then think of alternative documents that would still adequately address the issue at hand. Then clearly lay out the explanation for USCIS. This is the job of an experienced and creative immigration lawyer. Contact Emily Sumner (firstname.lastname@example.org) to set a consultation to develop a strategy for a successful H-1B filing season!