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:
- Is there work available for the H-1B employee as of the time of filing, and will that work last for the duration of the H-1B period of stay requested (typically three years), and
- Will the employer control and direct the employment of the H-1B employees, even though he/she will be working offsite?
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:
- If the H-1B employee will work at a third party worksite, in an ideal world, the petition package would include:
- The contract
- The purchase order or work order
- The employment agreement with the H-1B employee, which documents the terms of employment including rate of pay and the benefits given
- Copy of the employee handbook, showing employee benefits, and document showing the employee received a copy (signed receipt)
- Sample performance review documents
- Previous pay stubs, or redacted pay stubs from other employees showing that the employer withholds taxes as required
- The coveted end client letter (letter from the third party worksite confirming the H-1B employee will be placed there, and confirming other details).
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:
- In the above list, some documents are already available (ex: employment agreement, employee handbook, sample performance reviews, etc.).
- Sometimes language from the contract can be extracted and highlighted in the cover letter to establish that the H-1B employer will maintain control over the beneficiary’s employment.
- If your company has ongoing or past placements with the end client, you could include documentation of these placements, to indicate that a position is available at the time of filing. Likewise, a listing of openings at the client site has proved helpful in our clients’ petitions.
- It sometimes takes more than five months for USCIS to get around to adjudicating a cap-subject petition. By that time (say, September), if you do receive a request for additional evidence (RFE), it may be more likely that you could obtain a work order, for example, from the end client.
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!