The H-1B Petition And Computer Professionals
An employer seeking the services of an H-1B candidate and filing the necessary papers to obtain such services must be a “U.S. employer.” A U.S. employer is a person, firm, corporation, contractor or other association or organization in the United States with an IRS tax identification number. There must be an employer-employee relationship, as indicated by the fact that the employer may hire, fire, pay, supervise or otherwise control the work of the employee.
As a prerequisite to obtaining the services of an H-1B worker, the employer must file a labor condition application (LCA) with the Department of Labor (DOL). Among other things, the LCA must list the location where the work will actually be performed. Therefore, if the candidate is to be hired by a company located in one place but will actually be doing the work in another facility or company, the LCA should list the worksite as the second location. If the candidate works in more than one location, both locations should be listed. If the employee is a “roving” employee but has a base in one main location the LCA should list the main place of employment.
According to Department of Labor statistics, more than 40% of all LCA’s are approved for computer (Information Technology) professionals.
Instead of an Approval Notice, the USCIS sometimes issues an RFE (also known as Request for Evidence) in response to filing an H-1B petition for computer professionals. The RFE normally uses boilerplate language and states “[t]his Service accepts that you are the employer, not an agent, and that you retain control over the beneficiary’s employment. A copy of the agreement(s) are needed to establish that the employment of the beneficiary is not speculative in nature, and that the beneficiary will be employed in fact. Service regulations specify that aliens admitted to the United States as nonimmigrant workers must have services to perform….”
Computer Professionals typically work at client sites through an agreement between the petitioner (employer) and its client. An employer who seeks the services of an H-1B worker at more than one location must provide an itinerary. In certain circumstances, the USCIS requires presentation of “third party contracts” between the petitioner and the petitioner’s client (at whose site the H-1B employee will work), allegedly to determine whether employment is “speculative.”
Speculative employment is an important issue to the USCIS. Some employers are filing petitions for H-1B workers in order to fill assignments which they anticipate getting in the future, but which do not exist at the time the petition is filed. USCIS personnel have indicated to the American Immigration Lawyers Association (AILA) that they must know three things: a) that a job exists; b) where the job is (in order to verify that there is a certified LCA for that location); and c) what the job duties are (to assure that the job is a specialty occupation).
Thus, copies of written contracts may be required for work performed under contract, and specific job descriptions with time frames may be required for work performed for an employer but outside the employer’s place of business. Prudent practitioners, therefore, provide contracts and itinerary whenever possible. Problems may arise where a) it is not the usual practice in the business to prepare a contract between the employer (petitioner) and the third party job site; or b) the employee’s itinerary has not been determined.
Possible solutions suggested, but which have not yet been explicitly endorsed by the USCIS include
a) providing proof of time needed to complete the services indicated in the petition;
b) showing a bona fide employer-employee relationship between the petitioner and the beneficiary;
c) providing financial information showing that the petitioner is capable of paying the beneficiary’s wages for the duration of the petition; and
d) showing that the petitioner has more contracts than it can fill and is intensely recruiting for qualified computer professionals.
Please note that a contract committing to a specific project and time frame will limit approval in duration to the time required to complete that project. A knowledgeable immigration attorney should be able to guide the employer in collecting supporting documentation or suggesting viable alternatives.
Please contact our firm to discuss your immigration matter.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
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