EXPLANATION OF H-1 B PROCESSING DIFFICULTIES

This is an explanation of the H-1B process so as to enable our clients to clearly understand the nuances of the H-1B immigration process.

The Immigration and Naturalization Service (INS), in general, focuses on two major issues when determining H-1B eligibility.

The first issue concerns the qualifications of the individual. There is often a misconception among persons that if an individual has several years of work experience, that individual automatically qualifies as a professional engaging in a specialty occupation for H-1B purposes. True, the regulations do allow 12 years of progressive work experience to substitute the lack of education or the equivalent of a Bachelor’s degree from an accredited U.S. university or college. In fact, although in theory, experience can substitute education, in practical terms the INS places emphasis on the individual’s educational background rather than the beneficiary’s work experience.

Therefore, it is preferable to have an individual with a four-year Bachelor’s degree and three years experience rather than have an individual with a three-year degree and several years of work experience.

Also, the education must be in a specific and relevant field. Thus, though we often qualify individuals as Management or Business Analysts for employers such as travel agencies, garment importers, wholesalers etc., the INS is wary of these titles and descriptions. Unfortunately, if an individual has a Bachelor’s degree in Commerce there are very few alternative options but to qualify the individual in a position that needs someone with a Bachelor’s in Commerce or Management. The other problem we face is that according to INS it is not common and not the standard minimum requirement in the industry for Travel Agencies and other similar businesses to hire individuals in the field of management analysis. Therefore, they do not believe that these positions are legitimate and often deny such cases.

As attorneys, we also face the prospect of clients telling us that their friend’s case which was processed through our office or another attorney’s office was approved easily and that this particular case is having all kinds of problems. This is another issue that requires clear explanations. The INS is not consistent in its adjudications. They may approve cases for one individual without any problems. For other cases the INS may send us a lengthy Notice of Action asking for extensive documentation and additional information. And in some other instances the INS may even deny applications despite the fact that similar petitions for individuals with identical or similar backgrounds had been approved recently for the same corporation or business. Therefore, the fact that your colleague or friend has received an approval of his or her H-1B (whether it is with the help of our own office or another attorney’s office) is no guarantee of an approval of your H-1B even if it is under an identical situation. In fact, there are times when the INS has approved an H-1B for one brother with identical qualifications and denied the H-1B for another brother for the same employer. There are also times when the INS has approved the H-1B petition for three years and then denied the extension application despite none of the circumstances having changes.

If an individual has a four-year Bachelor’s degree In Computer Science (10 + 2 + 4 years of education) and several years of work experience or a Master’s degree in Computer Science and several years of work experience it should be far easier to obtain an H-1B visa, than for someone who has a three-year Bachelor’s degree in Commerce and a diploma in travel with some years of experience. Thus, the number of years of education and the field of study or the particular occupation are critical and more important than the number of years of experience in the profession.

Moreover there are other factors that the INS takes into consideration, as follows:

Generally the larger the size of the company in terms of employees and turnover, the easier it is to get an H-1B. An employer with a 1000 employees will have a much easier time obtaining an approval than an employer with 50 or 100 employees.

It is much easier to obtain an H-1 for an Engineer to work in Engineering Company than it is for us to obtain an H-1B in the travel, fashion, food or Import-Export Industry; it is extremely difficult to obtain H-1B’s for Individuals working for small retail organizations.

Another consideration is whether the employer normally requires individuals with such a background. For instance, has the employer in the past hired Individuals with similar backgrounds in a similar position?

Another issue is whether such a requirement is a standard minimum requirement in the industry. For example, do other travel agencies normally hire management analysts?

The second issue is the type of petitioner/employer. The INS will approve occupations in the Engineering field, in the field of Computer Science and Law and other similar professions/occupations/businesses much more readily than they will approve H-1B’s for individuals working for Hotels/Restaurants, Travel Agencies, Fashion and Textile fields, import-export, retail outlets, diamond importers, etc.

This is the case despite the educational qualifications of the individual. Some individuals may have a Bachelor’s as well as a Master’s degree in the Travel field and may have several years of work experience and therefore feel that their education warrants an H-1B approval. But this is not necessarily true, because the INS believes that the travel industry often hires individuals based on their experience alone and that the industry does not REQUIRE a Bachelor’s degree in the field. Not only is it not a requirement for that particular employer, but also it is not a requirement as an industry standard. Again, the larger the employer the easier it is to obtain the H-1B. The type of industry the employer is engaged in is also important. Whether a Bachelor’s degree in a particular field of study such as Engineering for an Engineering firm is a standard requirement in the employer’s firm as well as a standard requirement in similar industries is an important factor.

Employers have often asked us the following question: “Are we assured of an H-1B approval if we are a large company and if we have had approvals in the past for similar individuals with similar or even identical backgrounds?” Our answer is, “ABSOLUTELY NOT.” In fact, there have been instances where the INS has approved several H-1Bs for the same employer, and denied H-1Bs for other individuals with the same background. There are cases where an employer has 161 employees and $8 million in turnover and the INS has denied the petition. Of course the AAU has overturned the denial on appeal, but the appellate procedure is lengthy and time consuming. Often, attorneys feel their case is so strong that they do not have to prepare extensive responses. It is imperative that we thoroughly document and research each case, prepare extensive briefs and employer letters and address each and every issue raise in a detailed manner.

The type of immigration lawyer you retain is also important. There are some attorneys who prefer not to worry their clients and to tell them that their case is guaranteed and all will be well. Leave it to them. Then, if the case is approved all is well. But if the case is not approved the client gets a rude shock. There are other attorneys who like to scare their clients and tell them that the chance of an approval is very rare, even if this is not the case. Then, if the case is approved the attorney looks like a genius. We like to take a more pragmatic approach and evaluate each case on its merits and then give the client the true picture. This, however, does not often sit well with a client. Some clients want a guarantee that their case will be approved even though this may not be the case. Others refuse to even think of the pitfalls of their case and do not want us to consider the de-merits of the application. Although we have an extremely high approval rate, we will not process applications where the client expects a guarantee of approval. We are willing to give a guarantee that we will prepare the best case possible but the actual approval itself is beyond our control.

At times a client will tell us, “but I have so many years of business experience and I have a BCM and a diploma and my case should be a breeze”. The only way a client can understand the process is by reading case law and the hundreds of petitions the INS denies every year. Some of these cases are won on approval and others are upheld by the Administrative Appeals Unit (AAU).

Often after filing the initial H-1B petition, the INS sends back “Notices of Action” or “kickbacks” asking for additional information. When we receive these “kickbacks” or “Notices of Action” we dislike it more than the client. Why? Because we have to prepare extensive briefs, employer’s letters and gather substantial documentation. The more thoroughly the case is prepared and the more extensive documentation we submit, the greater the chances of an approval. If the petition is denied we have to file a Motion to Re-open the case along with an alternative Appeal. If the Motion is denied, the case is sent to the AAU and it often takes the AAU over one to one and half years to decide the appeal. In the meantime, the client is not allowed to work if he or she does not have alternative work authorization. Moreover, if the Appeal is denied, the client may have to leave the country and if he or she has been out of status for more than a year, the individual is subject to a 10-year bar before he or she can get a Green Card. That means the individual would have to stay out of the country for 10 years except for certain exceptional circumstances.

Often, we request the beneficiary and the Petitioner/Employer to provide us with extensive additional documentation and information but the Employer does not want to deal with these annoyances. There are times when we ask a client to be patient and give us time to conduct research and prepare extensive briefs and employer letters. But the client is impatient and wants to submit a response immediately even if it is not thoroughly prepared. WE MUST FOREWARN THE CLIENT THAT HE OR SHE DOES SO AT HIS/HER OWN RISK. It takes time and effort to prepare a

detailed response, to conduct research, to gather documentation and prepare a thorough response. OUR RECOMMENDATION TO THE CLIENT IS “TO MAKE HASTE SLOWLY.”

If the client insists, we can prepare a quick response but we will do so AT THE CLIENT’S OWN RISK AND INSISTENCE.

The choice is entirely the clients. We can prepare brief responses without extensive documentation in a hurried manner and risk a denial or prepare exhaustive briefs and employer letters together with additional documentation. The latter takes time to conduct research and prepare documentation thoroughly.