April 21, 2009
In my prior blogs Part I & Part II on the same topic, we took on the H-1B RFE (Request For Evidence) question addressing different aspects of this growing area in immigration law and an escalating area of concern for many. In this blog, I will address the H-1B RFE when its inquiring, at least in part, about the beneficiary. The major issues typically inquired upon are:
- Length of time in H-1B or L-1 status
- H-1B recapture issues
- H-1B beyond six years
- Educational background of the beneficiary
- Status of the beneficiary
The above list is by no means exhaustive and one should be aware that there are other issues that can come up that typically require an experienced H-1B attorney to help address them.
Length of time in H-1B or L-1 Status: This is a reasonably straight forward issue but one that generally generates RFE’s if it is not presented properly. The general rule is that the beneficiary can only get six years of total H-1B time. Time spent on L-1 visa will count towards the six year limit. Unless the total time on both statuses is clearly articulated with evidence in the petition, expect an RFE. If the beneficiary had an intervening other non-immigrant visa status, the time calculation should be clear on the intervening time. Off course the issue of who is subject to the H-1B numerical limitation cap and who is not, is relevant here but should be the subject of a separate future blog to be given appropriate treatment.
H-1B recapture time rule: Recently USCIS realized what is a simple common sense rule. This did not happen without court decisions overruling H-1B denial by USCIS. The rule is time spend outside the US should not count towards the maximum six year limit. If the person is outside the US, the six year H-1B clock stops. This allows for time recapture in an H-1B petition. If the beneficiary is recapturing any such time in the petition, clear evidence should be presented which should contain passport stamping and airline tickets. It is easy to make mistakes or be unclear in time calculation which will trigger an RFE. Clear presentation is important especially when presenting multiple recapture times.
H-1B beyond six years: If the beneficiary has used up all the six years on H-1B and the recapture time will not give them the time needed, they should look into the rules regarding H-1B extension beyond six years. This deals with filed PERM labor certification more than 365 days prior to filing petition or approved I-140 petition when a priority date is not available. We have explained this rule in details in a prior blog. The beneficiary may be entitled to more H-1B time in these cases. Failure to clearly articulate the applicable rule for the requested time will trigger an RFE. The legal standard must be explained and one must reference the appropriate USCIS policy memos or law in the petition. If this is not done, expect an RFE.
Educational Background: Unless the beneficiary has both a clear US degree equivalence, and relevant degree to the position offered, USCIS can challenge the H-1B petition based on education. A college degree or its regulatory equivalent is required for an H-1B approval. A recent appeals decision upheld the denial of H-1B petition for a Mechanical Engineers degree holder because the title programmer analyst did not relate to his college degree. In this example the petition failed to present sufficient nexus between the beneficiary’s educations and the position offered. Establishing the nexus after an RFE is issued can be more difficult.
In RFE situation USCIS will take adverse posture and your job to meet the standard becomes more difficult. For beneficiaries with less than full equivalency, for example 3 year bachelor holders, the beneficiary must show three years of practical experience for every year of education they are short. For those that did not attend college, we will be looking at 12 years of documented experience. The documentation must be very detailed signed by prior employers or drafted by prior supervisor with sufficient details to show progressively responsible and relevant experience.
Status of the Beneficiary: If the beneficiary has no status gaps they are in good shape. But who does? Immigration rules are too rigid and many beneficiaries have experienced being between jobs, unable to prove that they have been in status, or inadvertently found themselves in situations where they felt that their immigration status has been compromised. This can certainly trigger an RFE. In a worse case scenario, however, a denial based on status issues should not be the basis for the denial of the H1B petition. The petition may have to proceed based on councilor notification and the beneficiary may have to leave the US and re-enter. Off course, this scenario should be the subject to a separate blog due to its complexity.
Suffices to say that if there is a concern in this area, it is critical to discuss this matter with an experienced H-1B attorney and bring the circumstances to the attonry’s attention early. It is of a substantial advantage to the beneficiary for this issue to be addressed in the original petition upfront not in an RFE scenario