H-1B ISSUES FACING
CYRUS: Hello Everybody! This is Cyrus Mehta. Welcome to this week's edition of immigration matters. We're glad that you could join us today on this fortnightly segment where we provide you with information and the latest updates on immigration issues.
Today, we will discuss the problems that professionals in the computer industry have recently been facing in obtaining H-1B visa approvals.
The H-1B visa, in most cases, is the only way for a US-based computer consulting company to bring in software programmers into the US. The computer programmers are subcontracted to major US corporations via the consulting company. The INS as well as the US Consulates in India take an extremely strict view when adjudicating H-1Bs petitions filed on behalf of Indian computer professionals. This has come about because of some highly exaggerated exposures on television about Indian computer professionals taking away American jobs and depressing wages.
Joining me today is my colleague, Eve C. Guillergan, who has worked on several computer related matters in our firm. Eve, could you inform our viewers about the kind of problems that individuals in the computer industry have been facing.
EVE: This blue colored single spaced three paged letter contains a series of questions that the INS usually sends back to companies that file H-1B petitions for the first time. The INS notice starts off by stating that "in recent years the Service has encountered a number of nonimmigrant cases where it is not clear if the petitioning employer has a bona fide temporary or permanent position to offer the beneficiary for the duration of time specified." It then asks for the employer's financial statements, quarterly withholding records, tax returns, a detailed itinerary of the H-1B employee's projects and so on. The INS even questions the prior status of the employee who is being sponsored.
Cyrus, how would you advise someone who gets such a notice?
CYRUS: I would advise the company to respond to each and every query. Then, it ought to get approved. But, obviously, the petitioner must consider all these issues at the outset in order to avoid such a lengthy kickback. The key issues, before filing the petition, are as follows:
The Company must establish that it is financially viable to pay the employee's salary at the prevailing wage rate. If the petitioning firm is a job contractor, it must also be able to show that the alien beneficiary will be working for a specific client. It would therefore be necessary to include a contract between the petitioning company and the client indicating the project that requires the services of a computer professional. The job site on the contract must coincide with the job site stated on the Labor Condition Application. The job duties of the computer programmer must also be stated in great detail.
Eve, is there anything else you would like to add?
EVE: The foreign degrees of the alien must be evaluated by a reputed credentials agency to prove that the alien has the equivalent of an American bachelor's degree. Make sure that the evaluation agency provides a detailed explanation of the material evaluated rather than a simple conclusory statement. If the evaluator cannot find a US bachelor's equivalency in the relevant computer field, it would be necessary to describe the alien's substantial work experience in the computer field. Note that three years of work experience makes up for one year of education.
Cyrus, assuming the INS approves the petition, would that be the end of the problem?
CYRUS: Not at all. The US Consular officer in India will make the same inquiries when the alien beneficiary goes to apply for the H- 1B visa stamp on the passport. Make sure that the job site has not changed since the filing of the petition. The alien must also be prepared to explain his or her computer related duties in great detail, and must be able to specify the job site, provide a contract for that job site, as well as the name and telephone number of his or her project manager.
With this we conclude our program this week on Immigration Matters. I do hope you found this segment informative and helpful. If you have further questions, please call the Law Offices of Cyrus Mehta at (212) 686-1581. The number once again is (212) 686-1581. We would be happy to answer one question if you call within the next hour. This is Cyrus Mehta wishing you a wonderful weekend....see you again in two weeks.