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H-1 Visa Sample Cases

These are some sample cases from our files. It is impossible for us to present all have done past over 15 years of our practice. But these were some cases that came to mind when we started writing this column 2-3 years ago.

Case type: H-1 Approval after 5 Years of Unlawful Presence

Submitted by Rajiv S. Khanna on Oct 27th 2009, Modified on Oct 29th 2009
Category: H-1 Visa, Physicians
Status: Approved.

We were recently retained by an employer who had received very poor legal advice and representation from two different lawyers because of which their employee and her children fell out of H-1 status AND were unlawfully present in USA since 2004.  It appeared almost impossible that we will be able to get her back into status after a gap of over FIVE years, but it did work out.  Today, we have received H-1 approval as well as the coveted I-94 for all family members.  Comments from the client are here: http://www.immigration.com/guestbook/h-1-visa/guestbook-entry-bruce-a-trickel-united-states

Case type: H-1 Approvals Without Letter from the End-Client

Submitted by Rajiv S. Khanna on Jul 27th 2009, Modified on Aug 18th 2009
Category: H-1 Visa
Status: Case Approved

 We have been retained by several consulting companies to try to respond to their RFE's all of which require a letter from the end-client.  Many times, despite best efforts, such letters are not available.  So, as a test case, we filed an Request For Evidence is a a request from a government agency to provide further information on an issue before the government.

 We have been retained by several consulting companies to try to respond to their RFE's all of which require a letter from the end-client.  Many times, despite best efforts, such letters are not available.  So, as a test case, we filed an RFE response without an end-client letter.   As usual, USCIS wished for a confirmation of job duties, employer-employee relationship and duration of project.  We made several legal arguments including pointing out repeated misapplication of the law by USCIS.

So far, we have received two approvals of H-1 without letters from end-clients.

See also my article on this subject.  

Case type: H-1B - Specialty Occupation

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-1 Visa
Status: H-1B extension approved.

We have filed no less than 200 cases where USCIS had denied the application or objected to an application based on the fact that the title and position did not require professional level employees.  So far, we have won almost all the cases we have filed on motions to reopen or as new filings.

Case type: H-1B - Specialty Occupation

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-1 Visa
Status: H-1B extension approved.

The consulate revoked an H-1B in 1999. The client received notification of the revocation from USCIS in 2004.  In the mean time he was still working in USA.  We argued against these inconsistent and unconstitutional procedures and submitted an application for extension of his status in 2004.

Case type: H-1B - Specialty Occupation

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-1 Visa
Status: The Beneficiary’s I-129 petition was approved shortly after we filed the Response.

Our client, an electronic document management company was issued Intent to Revoke from the Texas Service Center.  Our client had filed an H-1B for the Beneficiary, which was approved by the Service.  However, the American Consulate subsequently revoked the petition following an interview with Beneficiary.  The Consular Officer determined that the Beneficiary was not qualified to work as a Systems Analyst.  Specifically, the Consular Officer claimed that Beneficiary did not have the requisite university-level coursework in Computer Science. 

The Petitioner sought the Beneficiary for the position of Systems Analyst because of Beneficiary’s extensive education and background in medicine.  The Petitioner needed a Systems Analyst to develop electronic medical records management software.  The Consular Officer erred by assuming that the Beneficiary should have the same qualifications as a computer programmer.  The foregoing arguments were developed in a lengthy Response to the Intent to Revoke, which was submitted to the Service.  In addition, we argued that the Consular Officer was not supposed to readjudicate the petition, and in this regard he erred.

Case type: H-1B - Specialty Occupation

Submitted by Chief Editor on Mar 25th 2009, Modified on Mar 25th 2009
Category: H-1 Visa
Status: The case was approved by USCIS with the I-94 attached.

We were recently retained to address a strange problem. An H-1 petition was approved, but the parties did not receive the approval notice for two years. The notice was apparently lost in the mail. They submitted an application for a duplicate approval notice, which also was issued and also lost in the mail. The employer then filed an application for an extension of status, which was granted without an I-94 attached to it. CIS considered the beneficiary to be out of status, because the employer had not placed the beneficiary on their payroll for two years. We submitted a motion to reconsider to USCIS as well as a supplemental brief together with an application for extension of H-1 status pointing out the legal implications of CIS decision.

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