H-1B CAP and OPT/CPT Change of Status | FAQs
by Attorney Rajaguru Nalliah, IMMLAWS
1) What documents should be submitted to avoid Intent to Deny in Cap subject H-1B petitions?
USCIS has issued many Intent to Deny (ITD) in the 2019 CAP subject petitions. Intent to deny is issued when the file is missing initial evidence. USCIS normally issues Intent to Deny when they have question on the fee exemption, such as ACWIA and Public Law Fee, also when the employer's information is not matching in the USCIS VIBE (Validation Instrument for Business Enterprises) database. In order to avoid ITDs, you may submit the documentary evidence for the following issues:
Business Verification: Include a copy of your lease, copy of any IRS letters, copy of the utility bills, photograph of the premises, etc. You may update your Dun and Bradstreet (D&B) information, but it is unlikely that D&B will update VIBE information immediately. If you have moved your office recently, you must include this evidence with your filing.
Fee exemption evidence: ACWIA fee - If you claim that you have less than 25 employees, or less than 50 employees, include form 941 or payroll records to show your employees count.
Public Law fee - When you claim that you have more than 50 employees and less than 50% H-1B employees, include the form 941 and payroll records to show employee count and include a list of employees with their immigration status.
2) How to choose Job Title, Level and SOC codes?
You must choose these elements based on the Job Duties. In IT related positions, USCIS accepts mainly "Software Developer " SOC as specialty occupation, other positions such as Computer Systems Analyst, Computer Programmer, Network and Computer System Admins, and all other occupations are inviting RFEs. I strongly suggest avoiding Computer - all other category. It is important to review job duties to choose the SOC code and levels. If your duties contain software development activities, you can designate the position as Software Developer. When determining Level 1 or 2, make sure not to include any high-level decision making, managerial, or supervisory duties.
3) How to document employer-employee relationship and specialty occupation availability at third party location:
Submit client documentation such as, 1) client letters with all details including duration, educational requirement, employer's control, etc. 2) Master Service Agreement, SOW-PO between end-client and vendor. Client MSA and SOW/PO are mandatory at California Service Center. On many occasions they are not accepting heavily redacted agreements. A Vendor letter is not necessary, but you must submit MSA and PO between all layers. Other worksite related documents such as photos, ID cards, co-worker affidavit, etc. may be submitted.
If you are submitting an employment agreement or offer letter, it should not contain any liquidated damages clauses. If you include an organizational chart, make sure the supervisor has no more than reasonable number of employees under his supervision.
MSA and Work order should be signed before the date of filing and must include duration - must cover the requested duration, job duties and identify the employee. Make sure MSA does not contain any language that only client or vendor control the employees. If no job duties listed in the work order make sure to include a client letter or any client documents signed by authorized personnel having knowledge of the placement, nature of the work. Also, include any evidence to show that the signatory has authority to sign such letters.
In recent days, USCIS is not accepting mere statements of the client that you have control over the employee, also expecting documentation to show how you are controlling the employee. Submit task assignment and task completion reports by the employee, and communication between your supervisor (not client) and the employee.
4) Can I file H-1B if the current work order expires before October 1st? Can I file amendment petition if the employee changes the project after filing?
H-1B petition may be filed only for a position available from the start date listed in the petition. This means, in this case the work order should be issued for an assignment valid on October 1st. You may file a petition with October 1st as start date if you expect the employee will be working in that position/project by October 1. At least the initial work order should be signed before the date of filing. You must document the extended work order along with initial work order when USCIS requests for additional evidence.
If the employee will not be continuing in the project after October 1st, you should not petition for that position. An amendment cannot be filed unless you have an approved petition for the same beneficiary, therefore you cannot successfully file an amendment in CAP cases using different assignment.
5) What kind of evidence should be submitted to establish the position is a specialty occupation?
Clearly establish the minimum educational requirements, level of education and the major. If you accept any major other than the specialty, the position is not specialty occupation. For example, if you claim that you accept "Engineering, " it refers to all types of engineering majors, so your position is not specialty occupation. Make sure the educational requirement is limited to the specialty (e.g. Computer Science or equivalent). If the employee has a degree other than specialty, you must document how his education, specialized training and experience is equivalent to the specialty.
6) Is Expert Opinion required to establish specialty occupation?
An Expert Opinion is not required to show that your position is a specialty occupation. In many cases, USCIS rejects the expert opinions not supported by corroborating evidence. You can very well establish the specialty occupation, without an expert opinion, by providing evidence of your job announcements, past employment practice, detailed job duties and why the task requires a Bachelor's degree in the specialty, industry standard, and discussion of OOH requirements.
7) How to justify the employee is qualified for the specialty occupation if the employee has a degree other than the specialty?
If the employee has a degree other than the specialty, establish the equivalency based on the education and experience. Any evaluation not supported by corroborating evidence, such as specialized training-experience letters are not acceptable. Expert Opinion on the educational equivalency of the employee is also not acceptable unless it was supported by proper evidence such as experience letters showing the employee has gained progressive experience in the specialty, and specialized training in the occupation.
8) Can I request the duration for three years?
In many cases USCIS approves only till the date the SOW was issued. You need to be reasonable in determining the end date. Keeping the processing time in the mind, you may request for around 18 months. When you are applying for in-house employment request for least possible period based on the salary and financial viabilities.
9) When requesting change of status for CPT/OPT students, what documents should be submitted?
Last year, USCIS has denied change of status for many students and determined they have failed to maintain status, particularly in California Service Center.
Include employment history and pay statements for entire OPT period to establish that the employee has not been unemployed for more than 90 days in OPT and 60 days during STEM OPT. If your employee had unemployment for more than these allowed periods, you may avoid requesting Change of Status and apply for consular notification, so that USCIS will not test employee's maintenance of status. You may submit 1) all OPT copies, and employment history, all pay statements, all I-120, attendance, transcripts, tuition payment proofs, 2) STEM OPT: all I-983s, training materials, trainer's name, designation, qualification, contact details, assignment - task reports, 3) if on CPT: employer/school co-operative agreement, explanation of how the major related to the practical training, etc.
10) Shall we claim unpaid internship to overcome unemployment period?
In many cases USCIS is not accepting unpaid internship. It seems the adjudicators are looking only for pay statements to determine the maintenance of status. Unpaid internship is accepted only if it meets the DOL requirement on the unpaid internship. In IT consulting, these DOL conditions cannot be satisfied. Please refer to https://www.dol.gov/whd/regs/compliance/whdfs71.htm
Courts have used the "primary beneficiary test " to determine whether an intern or student is, in fact, an employee under the Fair Labor Standard Act. In short, this test allows courts to examine the "economic reality " of the intern-employer relationship to determine which party is the "primary beneficiary " of the relationship. Courts have identified the following seven factors as part of the test:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern's formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern's academic commitments by corresponding to the academic calendar.
- The extent to which the internship's duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern's work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.