Without warning, the USCIS has once again changed what is and is not acceptable for H1bs that are at client sites. It seems that both service centers are now insisting on seeing either an end-client letter or a copy of the master agreement between the vendor and client and possibly the work order as well. This is something that I thought may have been coming from only a few adjudicators but now it seems that this may be based on some new directive or internal memo because it is occurring more consistently over the last few weeks. I have broken up the trouble areas into two sections below- please read them and keep this in mind when filing future H1bs.
I. RIGHT TO CONTROL
Right now, we have seen denials where they have said that they cannot determine whether the right to control is retained by the petitioner because they need evidence of the relationship between the vendor and the client. They will accept either a copy of the master agreement between the vendor and client or a client letter. Providing only a vendor letter will not work anymore.
Also, they continue to ignore the notion that an implementation vendor should be viewed as the end-client and they insist on seeing evidence from the end-client despite letters from the implementation vendors stating they are responsible for the project management and not the end-client. The USCIS also has been able to identify large vendors like CTS, Wipro, TCS, Accenture, etc. and will not accept them as end-clients, stating that they are consulting companies as well.
II. SPECIALTY OCCUPATION
To make matters even more complex, the USCIS has added a new Specialty Occupation section to their RFE template and here is what it says:
The record indicates that you are in the business of locating persons with information technology related backgrounds and placing these individuals in positions with firms that use such personnel to complete their projects.
The regulations allow additional evidence to be requested as may be independently required to assist in the adjudication of a petition. See Title 8 Code of Federal Regulations 214.2(h) (9) (i) . Therefore, it is requested that you demonstrate that there is sufficient specialty occupation work for the beneficiary to perform at the entity ultimately using the alien’s services for the duration of the requested H-1 B validity period by providing a combination of the following or similar types of evidence. If you have not already done so, provide the following:
- copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary on the contract and that provides a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence.
NOTE: The evidence must show specialty occupation work for the beneficiary with the actual end-client company where the work will ultimately be performed. Merely providing contracts between the petitioner and other consultants or employment agencies that provide consulting or staffing services to other companies may not be sufficient. The documentation submitted should show the proposed employment arrangements from the petitioner, through any other consultants or staffing agencies, to the ultimate end client.
This is the actual language from an RFE and we are starting to see this more and more. The USCIS wants to see evidence from the end-client that contains either the job duties or a statement that the position requires a bachelor’s degree. This can be proven by providing either a client letter, a copy of the MSA or WO, but only if it states the job duties or the educational requirements for the position or a copy of the requisition request from the end-client to the vendor which shows that they position requires a bachelor’s degree.