This is a very good question and can be answered by two words: Neufeld Memo. This article addresses the procedure for obtaining H-1B visa approvals for the duration of the three year H-1B validity period in third-party IT Consultant placment scenarios.
USCIS is Limiting the H-1B vlsa category in abrogation of the Law
There is a major problem plaguing the H-1B visa category: USCIS is issuing H-1B visas in one year increments for third-party placement scenarios. This is due to the fact that USCIS has effectively changed the law under H-1B without properly informing the public. It must be shown that a temporary H-1B worker will be employed for the full three year H-1B validity period. USCIS’s failure to properly advise the public on this issue is yet another negative consequence that has been created as a result of the Neufeld memo.
The Problem: Industry Standards Paradox
An H-1B petition needs to establish that an H-1B beneficiary will be employed throughout the duration of the H-1B validity period requested. In third-party placement scenarios, the Neufeld memo requires that the petition contain purchase orders, work orders and end-client letters, among other required documents. In regards to Purchase and Work Orders, typically Purchase and/or Work Orders have end dates prior to the requested H-1B period, It is industry standard that these orders are issued in monthly increments. Without fail, USCIS has only been issuing H-1B visas in one year increments if proper evidence is not submitted showign that the project will continue for the full three year period.
If USCIS is presented with insufficient evidence to show that the beneficiary will be employed throughout the entire three year H-1B period, they will issue the H-1B for one year due to the purchase order validity dates. The paradox is that USCIS requires PO’s in third-party placement situations to approve an H-1B petition, and that industry standards are to only issue them in monthly increments. Without more, USCIS will either deny a petition or simply issue approval for one year. It appears USCIS is asking for documents in order to further limit the H-1B visa category making it more expensive for employers and more time consuming for lawyers, vendors and companies alike.
The USCIS is fully aware that these projects typically continue for years, but if it is not shown clearly, they will issue only one year on H-1B. This is one of the most frustrating consequences that the Neufeld memo has created.
The Solution: End-Client Letter on Steriods!
Companies are now aware that an end-client letter is required in third-party placement scenarios to show not only the project details and duties, but also that the employer maintains control over the beneficiary. Through trial and error, employers have worked with end-clients and lawyers to draft air tight end-client letters. The letter used to be enough to obtain a three year H-1B approval. These days, it is not enough. An end-client letter now must contain a statment that the employee will be working on the project for the full three year H-1B validity period. The end-client letter has been the key to successfully opening the H-1B door. Now it requires even more to open the three-year door.
The end-client letter must state that the project is expected to roll out over the next three years. The H-1B petition will need to be supplemented by a letter from the ultimate end-client stating that although the PO’s are issued incrementally, the beneficiary’s role on the project will be needed throughout the H-1B period requested, namely: three years. It should not reflect the end date as the PO’s accompanying it, a strategy which may make end-clients more confortable yet which will doom an H-1B beneficiary.
Bulking up an end-client letter is the only way to prove to USCIS that the beneficiary’s project will continue for three years. A once bare boned letter now needs some juice. Simply drafting a line that states “The employee’s role on this project will continue for the next three years” should be sufficient. Going into more detail about the continual renewal of Purchase Orders and reference to the subcontractor agreement between the petitioner and end-client or preferred vendor will only help show to USCIS the need for this employee throughout the entire three year period. Lawyers have had to analyze all the documents and make reference to them in detailed letters in support to show USCIS what they should be able to see for themselves. This has led to varying degrees of success. With a “bulked up” end client letter, the USCIS will clearly be able to see that the beneficiary will be working for a full three years and will have no choice but to approve.
The Law Firm of Shihab & Associates, Co., LPA
If you have questions about an H-1B visa or employment based green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.