H 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.

Category: H-1 Visa
Status:

Our office was retained to process an H-1 Change of Status petition for a Quality Assurance Engineer working on a turnkey project owned by a middle vendor at a client location.  We explained to USCIS that the end-client was infact the vendor, who “owned” the project.  USCIS denied the petition, holdingthat we had failed to obtain proper documentation from the end-client.  We filed an MTR with extensive arguments and evidence that the petitioner was the actual employer of the beneficiary and that the vendor, not the end-client, owned the project. 

USCIS accepted our arguments and approved the petition and the attached I-94.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: H-1 Visa
Status:

We were retained for an H-1B petition.  USCIS issued a Request for Evidence asking for proof that the beneficiary would be employed in-house and that the petitioner has sufficient specialty level work available for the beneficiary.  No project information or agreements entered into with the clients could be provided to USCIS as evidence because of the confidential nature of the projects that the beneficiary would be required to work on in-house.  Therefore, we relied on secondary evidence supported by legal arguments.  USCIS accepted our arguments and approved the application. Albeit inconsistently, USCIS does understand that sometimes it is impossible for an H-1B employer to provide expected documents because of confidentiality requirements in their contracts with end-clients.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: H-1 Visa, RFE
Status:

We filed an H-1 application for a Bonsai Nursery/Facility Manager. USCIS issued a Request for Evidence (RFE) challenging whether or not a specific Bachelor’s level education is required for this position. We filed a detailed response, with voluminous evidence the specialized nature of the job. We urged USCIS to consider the merits of the job description and what it would take to perform the job. We argued job titles alone are not dispositive of the nature of a job.

USCIS approved the application.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Type of Case: H-1B Extension
Category: H-1 Visa, Managers and Executives, Extension
Status:

We were retained to file H-1B extension for the job title of Manager, HR and Training Operations [SOC (ONET/OES) Occupation Title of 11-3131 Training and Development Manager]. USCIS questioned that the job does not qualify as specialty occupation because the position falls within the category of HR Managers, and, as such, no specific degree or education is required to train for the position of HR Manager.

This was a very difficult case because we had the task of differentiating the proffered position of Manager, HR and Training Operations from that of HR Manager, even though Beneficiary was performing some of the HR Manager functions and his job title appeared to be similar to HR Manager.

We argued in the RFE using decided cases that USCIS should take into account the nature, scope, and size of the Petitioner’s business enterprise along with Petitioner's hierarchy/staffing levels to determine the importance of Beneficiary’s position. We provided data from various universities and arguments how the data correlates with the offered job.

USCIS accepted our arguments and approved the case.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: Accountants and Auditors, H-1 Visa
Status:

A recruiting firm for accountants retained our services to file an H-1B petition for a recruiter. Typically, it is difficult to justify that the position of a recruiter qualifies as an H-1B level occupation. Our petition to USCIS argued, however, that even though recruiters do not generally qualify as a specialty level occupation, the present case is different because the beneficiary will be hired as an International Accounting/Finance Recruiter. Accordingly, since the job duties of such a position are sufficiently complex to require knowledge of accounting, taxation, audit etc., the position requires the incumbent to possess at least a bachelor’s degree in the relevant field.   Consequently, USCIS issued an RFE raising the issue of specialty occupation. We responded by providing the beneficiary’s expanded job description and detailed project description, the employer’s past hiring practices and other supporting evidence.  This case was approved.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: H-1 Visa
Status:

We have just received another H-1 approval for an end-client placement.  There were two intervening vendors and the end-client declined to provide a letter stating that there is no requirement in law for them to provide any such letter.  We had to get together convincing secondary evidence.  I was highly doubtful we will get the approval, but we did.  So, despite the January 8 memo from USCIS, there is life yet for consulting industry.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: Accountants and Auditors, H-1 Visa
Status:

We were recently retained by an employer whose employee fell out of status due to an omissions by the former counsel. Prior to the employee’s H1B expiration date, the employer tried to file an H1B extension. The employer’s former Counsel utilized an obsolete and inappropriate wage source when filing the LCA. This wage amount was also not representative of what the employee was earning. As a result, the employer had to withdraw the LCA. This circumstance resulted in an untimely filing of the employer’s H1B application and the employee’s status expiring due to no fault of his own. Nonetheless, we were able to obtain H1B approval for the employee in six business days.  The approval was given nunc pro tunc.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: H-1 Visa, Physicians
Status:

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-tr...

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Category: H-1 Visa
Status:

 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.  

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.
Type of Case: Investigations
Category: General Green Card, ICE, USCIS, DOJ, DOS, Investigations, H Visa
Status:

 As of May 2009, we have been involved with over 100 investigations from USDOL, ICE, USDOJ, DOS and FBI.  One theme that emerges quite clearly is this.  A governmental investigation is NOT the same thing as a normal litigation.  The investigators are all things rolled into one: police, prosecutor and judge.  I have seen so many investigations being mishandled because counsel failed to recognize this truth.  By the time we get called in, it gets difficult to mop up the mess.  I like to believe that all investigations that we have handled from the beginning have brought good results.  While the government has a lot of power, they are not omnipotent.  Some items have to be firmly and politely declined.  And of course, where necessary, we are willing to go to court over our stand.  Folks, investigations have become a way of life.  We just have to be prepared for them.  When we conduct preventative audits for clients, we point out the things in their files that need to be addressed and improved.  In my view, it is extremely important that audits of existing files and procedures be conducted.

DISCLAIMER: PAST APPROVAL OF A CASE IS NOT A GUARANTEE OR PREDICTION REGARDING THE OUTCOME OF FUTURE CASES. CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE.

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