January 21, 2009
As an H1B attorney, I have observed a recent alarming increase in the frequency of Requests for Evidence (RFE) issued against H1b petitions filed by smaller Information Technology firms. There is no geographical pattern for the location of such IT consultants as I observed this flurry of record RFEs coming against our clients based in Columbus, Ohio, Washington, DC, or anywhere for that matter. The RFEs are extremely lengthy and require the submission of voluminous documentation, some of which has nothing with the regulatory requirements for Specialty Occupation (H1B). For instance, some of the RFEs demand the submission of zoning permits, floor plans of the premises occupied by the company, tax records, a list of all H visas submitted, and more; but the most concerning request usually proof that the petitioner is an employer, not an “agent.”
Although an “agent” technically may petition for an H-1B worker, once the Service believes that the employer is acting as an agent, it imposes extremely taxing documentary requirements on the petitioner that go above and beyond the normal kinds of paperwork that evidence most employment relationships. Once USCIS believes the employer is acting as an agent, its demands for evidence can become impossible to fulfill and may trap the employer in an impossible spiral in which all of its petitions become suspect in the eyes of the Service. Once an employer has fallen into such a trap, it may prove nearly impossible to get out of and result in disastrous consequences for the employer’s business.
In essence the petitioner is placed on the defensive to invoke the IRS of whether there exists and employer employee relationship since the H1B employees may work at a “worksite” other than the petitioner’s offices. USCIS charges such petitioners as a “staffing agencies” and requires a detailed itinerary of activities of the H1b beneficiary.
The flexibility and fast pace that business demands today from employers and their employees challenges traditional, old school business models. This is particularly true in fields such as information technology, where companies need to be able to move their employees from one site another in order or provide specific consultants with specialized skills at a moment’s notice to satisfy their clients. Companies that cannot provide these services when and how they are needed will not be able to compete. Gone are the days of the single office or worksite, the leisurely pace of life without the Internet.
Unfortunately, the USCIS has not kept pace with the changes that business today requires. The Service still imposes standards reminiscent of outdated business models onto petitioning companies, and the results can be exasperating for companies seeking to employ an H-1B worker, the employee, and the company’s clients.
Because of this, it is important for employers to seek truly experienced immigration counsel. Such counsel must have experience that goes beyond the typical bounds of navigating the demands and requirements of filing a successful H-1B petition. The ideal attorney will also be able to give employers practical advice on ways to structure and run human resource models and employment relationships that will minimize interference or suspicion from USCIS. Such advice may take the form of examining the employer’s typical work orders or employment contracts. The attorney will also advise the employer on best practices in documenting the placement and hiring of its employees, in addition to warning the employer of the kinds of employment and business practices that may rouse the suspicion of USCIS or trigger requests for evidence or denials.
Unfortunately, very often employers come to knowledgeable and experienced attorneys when problems have already started, due to retaining inexperienced counsel that charges bargain basement fees or after having filed a petition on its own. At this point, many employers have already been characterized as an “agent” by USCIS and are unable to prove to the adjudicators that they have a normal employer-employee relationship. Smart employers seek experienced counsel early in the hiring process, when the attorney can advise the employer on how to document and create relationships with both the employee and its clients that will lead to smooth and successful H-1B employment. The lawyers at Shihab & Associates, Co., LPA are experienced in these matters and have successfully counseled their clients on measures to avoid these traps.