Tag Archives: h-1b visa

H1B Visa Deportation News

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The recent deportation of a number of Indian H1B IT workers from Newark and JFK airports has sent shock waves through the H-1B community. H-1B employers, employees and their attorneys alike are flabbergasted by this brazen act of official highhandedness where individuals arriving on H-1B visas were singled out even before their primary immigration inspection, put through a sham questioning, forced into making coercive statements, issued expedited removal orders, and sent back! Their crime? They landed in the U.S. with legitimate H-1B visas to work for genuine U.S. entities, but at a location other than their office, i.e., at a client site or third party site!

H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. What is shocking is that the disgraceful action by CBP inspectors was triggered by an overzealous (mis)interpretation of a recent Memo issued by Donald Neufeld, Associate Director, Service Center Operations, U.S. Citizenship and Immigration Services (USCIS).

At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States. In such a relationship the employer should have the “actual” control or the “right” to control the employee, to hire, fire, pay, and to decide when, where, and how the employee will be employed.

Based on the experience of this writer in processing thousands of H-1B petitions over a period of more than 15 years (and attending to the resultant issues), this situation can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. Pardon me for saying this, a small minority of companies, through a lackadaisical attitude towards adhering to the regulations, seem to bring a bad name to the entire H-1B community and to the H-1B program itself, resulting in such sweeping governmental actions that affect legitimate H1B employers and put the lifestyle of unsuspecting employees and their families in jeopardy. Moreover, this supplies fodder to the anti-H-1B bogey that is becoming more and more vociferous in the light of rising unemployment in the United States. We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program.

As stated above, the focus of the CBP enforcement action is as to who the actual employer is. It should be noted, in situations where an individual works at a location different from the petitioning company’s office, the question is whether such petitioner employer has the “actual” control or the “right” of control over the H1B employee. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control. There are various ways to meet the requirements of actual control or right to control, as we have been advising our clients, by ensuring acquisition, usage, and maintenance of appropriate documents. It takes logical planning under effective legal guidance.

In conclusion, we would like to remind our clients and other readers of this article that the government’s enforcement of the regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.

Guest Author

Morley J. Nair

H1B Visa Application Supporting Documents

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In today’s immigration climate of heightened scrutiny by USCIS, it is essential to provide adequate and sufficient supporting documents with your H-1B application. Supporting documentation should come from both the beneficiary (foreign national) and the petitioner (hiring employer or company) for an H-1b visa application.

For the beneficiary, the supporting documentation is useful in proving that he/she otherwise meets the H-1b visa eligibility criteria. For a petitioner, the supporting documentation is useful in proving that the company or employer is a legit company/employer and that the beneficiary is going to work in the capacity as stated in the H-1b visa application. Of course, every H-1B application must be accompanied by the required USCIS forms and a Labor Condition Application (LCA).

Some typical items of supporting documentation that should be provided by the beneficiary for an H-1b visa application are as follows:
– educational information, such as post-secondary degrees and transcripts;
– resume and work history;
– work experience letters, if necessary;
– educational and/or work experience evaluations, if necessary;
– copies of any U.S. immigration related documentation, such as an I-94, I-20, EAD card, visa, etc.;
– biographical information, such as a copy of the applicant’s passport;
– copies of any relevant licenses, certifications, memberships, etc., if necessary;
– and documentation in connection with current H-1B status, if applicable.

This information is necessary from the beneficiary of an H-1B application because it is information that typically proves to USCIS that the beneficiary meets the H-1B visa requirements and the requirements for the position stated in the H-1B application. Some of the information may not be necessary, such as a license, certification, or membership, if such item is not necessary to perform the occupation.

Also, if the beneficiary is not using work experience to meet the H-1B educational equivalency requirements, work experience letters may not be necessary. If the beneficiary is currently in the U.S. it is important for him/her to provide documentation proving that he/she has been maintaining status. Such documentation may consist of his/her I-94, paystubs, Forms I-20, etc.

It can be just as important for the employer to provide supporting documents in connection with an H-1B visa application as it can be for the beneficiary. Some common supporting documents that should be provided by the employer in connection with an H-1B visa application are as follows:
– copy of the first page of the employer’s most recent federal tax return;
– employer’s articles of incorporation, if relevant;
– employer’s annual report; any marketing material used by the employer; the employer’s corporate brochure, if applicable;
– printouts from the employer’s website;
– printouts of any online references that may discuss the employer and/or the employer’s projects/work;
– and any documentation that may be relevant in connection with the beneficiary’s proposed role for the employer.

Such documentation can be useful in proving to USCIS that the employer is a legit operation and that it is the type of operation that requires someone of the beneficiary’s caliber to work in the occupation as stated on the application.

As previously mentioned, the current immigration climate is that of a heightened level of scrutiny by USCIS, especially in connection with H-1b visa applications. This heightened level of scrutiny has resulted in increased requests for evidence (RFE), notices of intent to deny (NOID), and flat-out application denials. The at the US Consulate interviews increased cases of 221(g) Administrative Processing.

In fact, it has become apparent that in some cases even the strongest or most well-prepared application cannot escape an extensive RFE from USCIS. However, we believe that by thoroughly preparing our clients and providing relevant supporting documentation, we can decrease the odds of receiving an RFE.