Yesterday we wrote about some of the common themes in H-1B RFEs these days. Today we continue that discussion with a look at some issues that affect primarily (but not exclusively) IT professionals placed at third-party clients sites.
Unless a person is running of time in H-1B status, the H-1B petitioner can request up to three years of H-1B status for the H-1B beneficiary (employee). However, USCIS is now looking very closely at the duration of the project the beneficiary will be working on. If the project will last less than three years, either according to the work order or end client letter, USCIS will likely approve the petition for the duration of the project as listed on those documents. So for example, if the work order says that the project will last for 6 months, the petition will be approved for only six months. We are seeing that in most cases where the employer requests a full three years but does not submit documentation to show that a project is available for that long, USCIS is often issuing an RFE asking for proof of work for the full three years. The employer can of course respond with the project documentation available and request that USCIS approve the petition for the duration of the project (as listed in the work order or end client letter). However, if the goal is to avoid an RFE, the employer may consider requesting an H-1B validity period that matches the duration of the project. This is something the employer should discuss with a qualified immigration attorney as each case is different.
Keep in mind that if the H-1B employer chooses to file the petition without the work order, or without the end client letter, USCIS may issue an RFE asking for that documentation as well.
For years, USCIS has requested a letter from the end client (for example, where an IT worker is placed at the end client site). It has been possible in some cases to have the H-1B petition approved without an end client letter, but that is becoming even more difficult recently. If an H-1B employer can obtain an end client letter, the letter must include among other things: the detailed job duties, the anticipated dates of the project, including the anticipated end date, and the specific minimum educational requirements for the position, including field of study.
If the employer cannot obtain an end client letter, it is possible to submit instead:
- A copy of the contract or MSA between the H-1B petitioner and each vendor and end client;
- A copy of the work order between the H-1B petitioner and each vendor and end client;
- A formal job description from the end client including a detailed list of job duties and the minimum educational requirements for the position. This job description cannot be on plain paper but instead must be in the form of a letter or email from the end client, or on the end client’s website. In other words, USCIS must have some way to verify that the information is directly from the end client.
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