There is no doubt that the H-1B visa program has experienced a recent evolution. The USCIS has announced a significant modification in the manner it will review and approve H-1B visa petitions for highly skilled workers. Only the experienced practitioners will now be able to represent their clients and get their H-1B visas approved. If you are an employer or employee and desire to get your H-1B visa filed during the upcoming H-1B visa cap or currently have an H-1B visa and wish to have it extended, you must pay close attention to these advice bits.
Get the Most Out of Your Immigration Lawyer
It is highly advisable to engage your H-1B visa attorney as early as possible. The first step in the process begins with an open dialogue regarding the circumstances surrounding the services of the foreign national in the company, his duties and assignments, the work environment and the location of the work itself. If the foreign national performs work at a third party site, meaning at a location other than the headquarters of the company, then you must alert your immigration attorney of this fact. If the work is being performed at the offices of the petitioning company, then a different kind of petition will have to be presented. In addition, if there have been significant changes in the duties of the foreign national, then these facts will have to be discussed. The most prevalent complaint clients normally levy against their lawyer is that their counsel does not act as a true partner. Having practiced in immigration law for nearly 17 years, I can also tell you that the most complaint attorneys advance against their clients is that they do not share critical information with them and do not allow them the opportunity to present viable and creative solutions to their cases. Hence, it appears that there is disconnect between counsel and client in many cases; a problem which can easily be alleviated by open and early communication about the employer’s practices and issues. I would strongly advice employers to engage their counsel as early as possible, preferably six months prior to the filing of the H-1B visa petition in order to gain the most out of their attorney’s representation.
You Get What You Pay For
Employers often complain that attorney fees are too burdensome in the days of bad economy. However, it must be stressed that hiring an attorney “on the cheap” carries grave consequences. The days of filling the forms and pushing the alien’s credentials to the USCIS are over. In order to obtain approval for an H-1B visa requires careful study of the circumstances surrounding the employees’ retention, location, pay and performance of their job. These issues require careful analysis of the relevant facts and law and to evaluate alternative strategies that would lead to approval.
Many lawyers charge a meager fee for filing an H-1B visa petition. The employer simply purchases the attorney’s “signature” on the immigration forms. This practice is wrought with failure as employer, in today’s environment, truly needs counsel and advice, not filing papers. Hence, the competent lawyer gets a reasonable fee for her work which the employer must be prepared to compensate accordingly. Some H-1B visa petitions may require more work, others do not.
H-1B Visa Petitions For Employees Working Onsite
If the H-1B visa worker will be performing services at the offices of the petitioning company, the USCIS is now requesting proof that the employer has such work in the continuity and scale requiring the services of the foreign worker. In other words, if the foreign national will be working on an in-house project, there must be documentation proving that the hours requested in the petition are proportional to the immediate and foreseeable future work demand. This can be proved by presentation of project details, deliverables, contracts or the existence of clear document (such as a business plan) which identifies the work to be performed. If several workers are being requested to work on such in-house project, then the documents proving the demand for such workers must coincide. Counsel should be in a position to advise the employer to document the requirement in a scientific and realistic manner. The USCIS will not approve petitions based on speculative work, therefore, the documents must bear semblance to realistic or probable expectations. In addition, the employer must be to show that it is well capitalized to cover the wages of the workers as well as other expenses/costs of project in a practical manner. These are scientific issues that require careful preparation and documentation.
H-1B Visa Petitions For Employees Working Offsite
The USCIS has introduced the January 8, 2010 Donald Neufeld Memo in which it created a mechanism based in common law to determining whether the petitioning company posses “control” over the actions of the foreign worker to form an employer employee relationship. The H-1B visa petitioning employer must now prove that it active in the supervision and evaluation of the worker’s activities at the third party worksite. If the company does not currently have such programs in place, it is time to begin documenting one with the help and assistance of its immigration lawyer. This fact underscores the importance of engaging competent legal counsel early in the process. I wrote a blog entry on instituting a program for compliance with the January 8, 2010 Neufeld Memo which is worth reading in this regard. It is important to stress that the aforementioned process is not intended to create a fictitious program to comply with recent USCIS adjudicatory postures. However, it is good practice to engage in closer management of the petitioning company’s employees anyway and to do so in a systematic and organized manner. Hence, it should not be viewed as a scheme to create phantom programs. It is critical that the petitioning employer only presents true fact to the USCIS as misrepresentation has grave civil and possibly criminal liability. It is for that reason that the petitioning employer must engage the services of experienced legal counsel to navigate through this new area.
The process of filing an H-1B visa petition has become more complex requiring open and early communication with competent and experienced immigration counsel. We have assisted many employers to analyze their practices carefully and to make adjustments and modifications which will lead to H-1B visa approval. Early planning pays off.