On a mission to eradicate fraud, USCIS is increasingly responding to petitions with burdensome Requests for Evidence (RFE). Over the past years, different trends has been observed, such as:
End Client
The USCIS recently changed the format of their Requests for Evidence (RFE) for petitions where the employee is located at a client site. In the past, the focus of these types of RFEs centered around the employer/employee relationship, but now, they have started questioning whether the position at the end-client requires a minimum of a bachelor’s degree.
These RFEs seem to be targeted at IT staffing companies because they include language that says that the record indicates the petitioner “is in the business of locating persons with computer-related backgrounds and placing these individuals in positions with firms that use such personnel to complete their projects.”
The RFEs suggest that in order to overcome USCIS's doubts, employers must provide copies of signed contracts, master agreements, work orders, statements of work, services agreements and letters between the employer and authorized officials of the ultimate end-client companies and that these documents should contain a description of the duties, the requirements for the position, salary, hours worked, benefits and a brief description of who will supervise the employee.
Education
The USCIS has in the past has placed an emphasis on education and has been issuing RFE where they are asking about:
- Education evaluation from a reputable evaluation company. Further, if the evaluation requires a combination of education and experience to equate to either a 4 year degree or a degree that is relevant to the position, the USCIS is requiring evidence establishing the evaluator's credentials and qualifications. It is important that Sponsors who sponsor H1B applicants with foreign degrees get their evaluations from credible evaluation companies and that they submit the evidence regarding the evaluator’s credentials and qualifications.
- How a person’s degree relates to the position. They are questioning this more frequently so it is important to verify that there is either classwork or experience that an H1B applicant can show in order to prove that their education/experience is relevant to the position that is being filed for on their behalf.
Right to Control
The USCIS continues to question an employer’s ability to control their employee when that employee is located off-site. Further, they question the employer’s employer/employee relationship and how the employer intends to maintain this while the employee is working at a client site.
These doubts have been raised since the Neufeld memo was published in 2010. An end-client letter which states that the project/assignment will last for 3 years resolves this issue, but in most cases, end-clients are hesitant to issue these types of letters as they feel that it can be construed as a contractual commitment to that consultant and their employer.
Other Notable Observations
- Although additional scrutiny has affected companies of all types and sizes, those that design and/or produce products are not nearly as hard hit as companies that provide IT services.
- USCIS is increasingly tallying and tracking cases filed by each company. Companies that file a disproportionately high number of petitions relative to its overall headcount often face more burdensome RFEs.