Published: July 15, 2011
For an H-1B work visa to be issued to a foreign worker, there must be the right type of job offer from the right type of company for the right type of worker. The right type of job offer, in general, is one that involves duties that are of a “specialty occupation” or “professional” in nature where the worker typically is required to have attained the equivalent of at least a U.S. Bachelor’s Degree to competently carry out the proposed duties. The right type of company is one that is of a size and nature that would ordinarily have use for the proposed worker. And the right type of worker is one who possesses the equivalent of a US bachelor’s degree in the form of education and/or experience, and with such education or experience having a correlation to the job being offered. At present, nearly two thirds of the 85,000 supply of H-1B visas for the upcoming fiscal year continue to be available.
Over the past several years, the immigration service centers reviewing H-1B petitions have been applying a fine tooth comb in the decision making process, and below are what appear to be, rightly or wrongly, the three most common reasons an H-1B petition is denied.
1) The position offered is not truly a “specialty occupation”. Indeed, the petition and supporting job offer may say that a 4 year university degree is a prerequisite to perform the duties set forth, and the worker may have the degree deemed by the parties to be necessary and appropriate – BUT, the officer reviewing the petition at the Department of Homeland Security/Citizenship and Immigration Services “Service Center” alleges that the position is not suitable for H-1B classification because workers without Bachelor Degrees typically fill such a position.
The employer is first notified of such an assessment in a “Request for Evidence”, where boilerplate, laundry list type language points out all the reasons the position is inappropriate for H-1B classification. The employer though is then given an opportunity to respond and provide evidence such as a) previous company advertisements for the position where a BS or BA was listed as a requirement, b) affidavits from professional associations or colleagues in the industry confirming that a BS or BA is a standard industry requirement for such a position or c) job advertisements posted by companies of similar size and for similar positions where a 4 year university degree is listed as a requirement. Recently, our office has had H-1B petitions for Interior Designers, Rehabilitation Manager and Quality Assurance Coordinator (Healthcare) scrutinized in this regard. In most cases our office’s responses to Requests for Evidence in such cases have led to DHS/CIS issuance of approval notices.
2) The position is not truly the position the petitioner claims it to be. What? Sounds silly, right? However, if for example, we have a company that consists of 3 or 4 employees with annual revenues of say $150,000.00 or less, and are submitting an H-1B petition for an accountant (universally recognized as an “specialty occupation” and suitable for H-1B classification), the typical DHS/CIS response will be to the effect: come on, why in the world would this company need to employ a staff accountant at a rate of $40,000.00 per year? Despite employer claims that the company is growing and has a tremendous horizon for expansion, DHS/CIS will second guess the plan and usually deny the petition, alleging that the position is really that of a “bookkeeper”, if that, and a position that can be carried out by a worker with far less education that a Bachelor’s Degree.
3) The petitioning employer will not be the true employer, but instead just a company to facilitate the worker’s employment at a third party location. This type of allegation most often rears its ugly head in the context of H-1B petitions filed by IT consulting companies looking to assign a computer programmer, software engineer or systems analyst to a third party location, or a healthcare staffing company looking to assign a healthcare professional, such as a physical therapist or occupational therapist, to a third party site. To respond to such an allegation, the employer will usually be requested to provide documentation that unequivocally confirms the job duties and that the worker will be under the control and supervision of the petitioning H-1B employer and not some manager from the third party client/location.
As is the case with most immigration related filings, careful planning and strategizing (including deciding when not file!) will maximize the chances for avoiding a denied H-1B petition.
PUBLISHED June 30, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois