Sometimes, the USCIS questions third-party placement arrangements for H1B visa applicants. Our client was seeking a visa during the Trump Administration. The USCIS under the Trump Administration interpreted legal standards in a stricter light. It demanded proof of three years of employment. The USCIS also issued a standard specialty occupation Request for Evidence (RFE). This RFE requires proof that the position requires certain knowledge and that the person to fill the position has at least the equivalent of a bachelor’s degree related to this knowledge.
To compound the challenges already present in the above RFEs, the Beneficiary had already been denied on a petition filed by another attorney. It was also unclear whether the Beneficiary was legally in the country when filing for this new H-1B petition.
We had to address these challenges on different fronts. We used our experience and resources to put together well-researched and well-written RFE responses––the key is making sure clear links are made and the language used is accessible and straightforward for USCIS officers. We also provided comprehensive guidance to the client.
With respect to the strict interpretation of the controlling law and statutes, we cited administrative law to clearly establish that the USCIS’s demands, in this case, were arbitrary and unduly strict. To address the 3-year employment request, we partnered with the End Clients and Middle Vendors. We drafted letters for them to review, edit, and/or approve. With these letters, we were able to show that a legitimate and long-term business relationship existed and that the Beneficiary will be able to fulfill the 3-year employment requirement. In addition, to the time requirement, we also had to prove specialty knowledge. The proof was two-fold: (1) we worked with the employer to create a chart clearly showing it routinely hires employees meeting H1B standards; and (2) we worked with the client to adequately align the highly technical job duties with specialized knowledge obtained from academic studies.
We also advised the client to quickly make use of the 10-day grace period to apply for a tourist visa after the initial H1B denial with the plan to file for a change of status to H1B while lawfully in the United States as a tourist. We thoroughly explained to the USCIS the extenuating circumstances.