Background
The individual held a degree in business management from an institution in India as well as a degree in business administration from a U.S. institution. The company was seeking to employ the individual as an IT employee. While the degree and the position did not line up exactly, it still didn’t seem to warrant an RFE.
Unfortunately, this particular RFE called almost everything into question. The most surprising aspect of this petition’s RFE, however, was the fact that the petition had been filed for an H-1B extension for the same position during the previous year’s filing.
Despite the incredibly short time frame and confusing circumstances, the dedicated attorneys at SGM Law Group accepted the challenge and got to work.
The Case
This case had baffled not only the petitioning consulting company but also the law firm that they had initially worked with. With the window of opportunity rapidly closing, VisaNation Law Group attorneys began disassembling each aspect of the RFE.
- Firstly, the USCIS questioned the employer-employee relationship. There are strict rules outlined in the Labor Certification Application process that aim to prevent preferential treatment to friends and family members from U.S. employers.This also prevents those who are self-employed from filing on their own behalf. Partners and employers with very few workers may also find it difficult to secure an LCA.
- Secondly, the position itself was called into question. Qualified H-1B occupations must be considered “specialty positions”. According to the USCIS, this means that the position must be so specialized that the duties require a relevant bachelor’s degree or higher to perform. In this case, the previous firm had not given immigration enough evidence to prove this.
- Thirdly, the USCIS asked for more evidence concerning the individual’s own qualifications for the position. Relevant past experience and educational background play a large role in determining your qualifications for a position.
- The fourth problem was that the USCIS did not have sufficient proof that the company could control the employee’s duties, salary, and performance. This could be the result of improper documentation or the fact that a company could hire and pay an employee while he or she worked in a different location.
- And lastly, the question of whether or not the specialty job would be available throughout the individual’s stay under H-1B status was brought under scrutiny. This measure is to prevent employers who are using employment as a facade to secure an individual a working visa for an otherwise un-specialized position.
VisaNation Law Group attorneys meticulously combed through the previously-submitted petition filing to analyze how best to respond to this RFE. Each query needed to be fully and satisfactorily addressed. The two-week window did not allow for any mistakes.
The Verdict
Each question was addressed and each query was satisfied. Through careful analysis, our firm gave strong evidence for the specialty nature of the position as well as a detailed itinerary to give the USCIS a better understanding of what the individual would be doing.
This itinerary and more detailed job description made it clear that the position required a bachelor’s degree to perform by showing that one would need a foundational knowledge of computer systems, software, and coding to complete each task.
By refining the definition of each task, we were able to highlight experience and qualities in the individual that correlated to the required expertise.
VisaNation Law Group attorneys also provided the USCIS with concrete documentation proving that a valid employer-employee relationship of control had been established between the company and the individual and that this relationship, as well as the specialty occupation, would continue until the end of the individual’s employment.
All of the evidence was gathered and submitted before the two-week deadline. Through premium processing, we were able to receive a decision in just two days.
Needless to say, the case was approved. Due to the dedication and expertise of VisaNation Law Group’s immigration attorneys, the RFE was addressed and the individual was able to apply for an extension.
Conclusion
When it comes to a field as fluid and complex as immigration law, you should always have an experienced lawyer on your side that knows the ins and outs of any obstacle you may encounter on your H-1B journey.
SGM Law Group does not disclose the identities of any clients or individuals involved in its cases. We also do not disclose the details of case specifics in the interest of client privacy. It is important to note that because each immigration case is unique, previous success does not ensure future success.
