United States laws and regulations allow U.S. employers to hire foreign skilled workers either on temporary basis or otherwise referred to as non-immigrant worker petitions or on a permanent basis or otherwise referred to as Green card petitions.
Today, I will discuss the challenges faced by small businesses when filing for an H-1B Non-immigrant visa petition and tips to a success outcome.
H-1B Non-immigrant visa petition is filed on behalf of an “alien” who:
“Will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States, and who is qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation.”
In addition, according to Section 214.1(h)(4)(iii)(B) of Title 8 of the Code of Federal Regulations) a Petitioner is required to submit only the following with its H-1B Petition:
The petitioner shall submit the following with an H–1B petition involving a specialty occupation:
(1) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,
(2) A statement that it will comply with the terms of the labor condition application for the duration of the alien’s authorized period of stay,
(3) Evidence that the alien qualifies to perform services in the specialty occupation as described in paragraph (h)(4)(iii)(A) of this section
When a big company files for an H-1B Petition say on behalf of an “Office Manager” without detailed job description and providing all documents mentioned above, the Petition will be approved by the USCIS without delay.
However, if a smaller size company with 1-50 employees files the same petition for the same position and establishes all the requirements, the same company will receive a 5-8 pages of Request For Evidence (RFE). Some of the language on the RFE will state:
USCIS does not use a job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The specific duties of the offered position, combined with the nature of the petitioning entity’s business operations, are factors that USCIS considers.
Submit a detailed statement to:
• Explain the beneficiary’s proposed duties and responsibilities;
• Indicate the percentage of time devoted to each duty;
• State the educational requirements for these duties,
• And explain how the beneficiary’s occupation relates to the position
The RFE further asks for evidence that the Petitioner has enough work available for the requested H-1B validity such as:
• Signed copies of two or three most recently filed federal income tax returns to include all required schedules and statements;
• Company’s organizational chart;
• Copies of company brochures, pamphlets, internet websites, or any other printed work published by the company which outlines in detail the products or services provided by the company.
Some requests go as far as requesting copies of all advertisements made for the position, W-2s of all other employees employed in the past in the same position, and proof that other companies with similar size require an employee in the same position who possesses a Bachelor’s degree as a minimum requirement.
As you may realize most of the documents requested are not needed to either prove that the Employer will comply with the Labor Condition Application or will comply with the terms and conditions thereof. USCIS instructs its officers to exert excessive scrutiny on small business as they may be hiring an H-1B employee as a favor to a “relative or a friend.”
This singled out scrutiny to small businesses certainly makes the process of hiring skilled workers very tedious and costly to small businesses and imposes a standard of proof beyond preponderance of evidence normally required for adjudicating these petitions. Moreover, this practice is contrary to the U.S. government policy of “attracting the world’s best and brightest entrepreneurs to start the next great companies here in the United States ”
After reading all of these, one may ask oneself: Is it worth it to even try filing an H-1B non-immigrant visa Petition if my company only has 1-50 employees in the U.S.? The answer depends on the steps you take prior filing as opposed to reacting to the issue after you have filed and have received an 8 page RFE.
Tips to a success H-1B Non-immigrant worker Petition by a small to mid-sized company:
• Define the Job Position in the context of H-1B visa petition requirements: keep in mind that an H-1B position must require a Bachelor’s degree in specific field of study. Employer has to define what is the field of study pertaining to the position and always to ask yourself, does this position require an individual who has at least a Bachelor’s Degree in a defined field of study to perform its duties? If the answer is no, stop right here do not bother start the process;
• Prepare a detailed job description listing percentage of time spent on each duty: USCIS looks at the job duties to determine whether the position is a Specialty Occupation or not. Mistakes made by smaller companies include trying to combine duties performed by different types of position in one position. USCIS will deny cases showing such job descriptions. For example: for an Office Manager Position, could qualify as s specialty occupation. However, if the job description shows duties that are normally performed by a bookkeeper/accountant and/or an IT Support, USCIS will deny the H-1B, it does not matter how hard you try to explain that those duties are to be performed less than 10% of the time and are incidental to the Office Manager position;
• Ascertain that your potential employee qualifies for the position: he/she a Bachelor’s degree or equivalent in a specific field or related field, and/or work experience in the same or related position. The potential employee will need to provide diplomas and transcripts along with a detailed resume. If the potential employee obtained his/her diploma outside the U.S., they will need to obtain an educational credentials evaluation;
• Prepare a company organizational chart in order to show where the position stands in the company structure. If you do not have one, you can check for a template online and make one. The key here is to show that the H-1B employee will only perform specialty occupation duties and will be relieved from performing other non-qualifying duties.
• Provide company’s brochures, website printouts, or other promotional documents such as business plans to assure USCIS that your company is in business and did not just get established for the purpose of petition the H-1B employee;
• Make sure to obtain a certified Labor Condition Application;
• Provide evidence showing that the position qualifies as a Specialty occupation;
• It is advisable to hire a reputable immigration attorney who has experience in this area. The Attorney usually helps you prepare almost all the documents described above. The Attorney helps you strategize in order to anticipate any potential issues so you can file and obtain the approval of your employee’s H-1B Petition without delays and unnecessary additional costs.
I will conclude by saying that unfortunately, until perhaps there is a class action taken and won on behalf of small businesses to reduce the excessive amount of additional requests for evidence and denials; or the Government comes to its senses and realizes that small businesses need the use of cutting edge researchers, scientists, engineers, and other talent and skilled professionals; the small businesses must take extra steps and provide more evidence in order to obtain an approval of an H-1B employee petition.
It is possible to successfully file and H-1B Petition for a small business as long as proactivity and strategies are taken prior filing instead of trying to fix or react to the Government requests after the fact which could be too late.
The good news is that the USCIS has an RFE template that it uses almost uniformly in all H-1B cases. Your immigration Attorney should have experience with replying to the RFE so they can advise you in advance and potentially avoid an RFE for your case.
Written by Claudine Umuhire Gasana, Immigration Attorney