The USCIS’s interpretation of the January 2010 Neufeld Memo continues to cause trouble for IT consulting companies. USCIS has recently been issuing RFE’s as a matter of course where an IT consulting company is attempting to move an H-1B Visa consultant off an assignment and place them in-house to implement a project at the employer’s headquarters. In the latest round of RFE’s, USCIS simply does not believe that IT consulting companies have an in-house project and are seeking detailed documentation proving one exists.
The H-1B “In-House” Request for Evidence (“RFE”)
When the H-1B beneficiary will be placed on an in-house project at the employer’s location, USCIS will ask that the employer prove the petitioner has sufficient “specialty occupation” work for the beneficiary on the project. Translation: USCIS doesn’t believe the in-house project exists. Why? They think that this is a round about way for the employer to bench the employee while it seeks another assignment. USCIS understands what IT consulting companies do and is trying at great lengths to shut down the entire industry. Hence, the Neufeld memo, the $2,000 “Obama fee,” the endless RFE’s, and the arbitrary denials. But there is hope! Following these guidelines will increase the chances of success ten fold.
To prove the in-house project exists, USCIS is seeking the following evidence:
- Copy of signed Employment Agreement between you and beneficiary detailing the terms and conditions of employment;
- Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
- Copy of relevant portions of valid contracts, statements of work, work orders, service agreements, and letters between you and the authorized officials of the ultimate end-client companies to whom the end product or services worked on by the beneficiary will be delivered;
- Copy of a position description or any other documentation that describes the skills required to perform the job offered, the tools needed to perform the job, the product to be developed or the service to be provided, the method of payment, whether the work to be performed is part of your regular business, the provision of employee benefits, and the tax treatment of the beneficiary by you;
- Evidence of sufficient production space and equipment to support the beneficiary’s specialty occupation work.
- Copies of critical reviews of your software in trade journals that describes the purpose of the software, its cost, and its ranking among similarly produced software manufacturers;
- Proof of your software inventory;
- Proof of sufficient warehouse space to store your software inventory;
- Copy of the marketing analysis for your final software product;
- Copy of the cost analysis for your software product;
- Evidence of sufficient production space and equipment to support the production of your software.
Tips for Obtaining an Approval for “In-House” Employment
Immigration lawyers have learned that these “in-house” RFE’s are basically looking for the money. In other words, if a company has an in-house project that requires an IT professional’s services for three years, then the company must have made substantial capital expeditures for the project. USCIS realizes this and wants to see entire project summary from the invoices to the project plans to the cubical that the consultant will be working at! The employer must submit detailed responsive documents that are probative and veracious (meaning it is both useful and truthful) and that are professional. An employer simply cannot submit documents created hastily in an effort to make a response. The petition will be denied if this is the case.
Third Party Placement Scenario and In House Employment: Trouble Lurking!
It gets more interesting (and more burdensome on the petitioner and lawyer) when the employee is on assignment then is expected to return to the corporate office for an in house project. In this scenario, the Neufeld Memo must be addressed along with the above documentation. This changes the typical H-1B visa from relatively straight forward to very difficult. It’s like going from making a backyard rocket launcher kit to building the NASA Space Shuttle! Ok ok, perhaps I’m speaking in superlatives but the point has been made. It’s much more difficult.
With the assistance of qualified legal counsel, any H-1B obstacle can be overcome. It is advisable that if you are trying to take an H-1B visa consultant off a project and bring him/her in-house, you must show USCIS the path of funding. This is in addition to the other regulations that must be met with each H-1B. It is critical that these procedures are done correctly to ensure that your H-1B visa is not denied on a technicality.
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