VSC on H1B Cap and Third-Party Client Sites
Posted Sep 11, 2009
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The Vermont Service Center (VSC) recently addressed questions from the American Immigration Lawyers Association (AILA) on a variety of topics. The issues relating to H1B cases are summarized here for the benefit of MurthyDotCom and MurthyBulletin readers. Topics include the cap count as well as the important matter of required evidence for H1B workers placed at third-party worksites.
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H1B Cap Progress
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The VSC advised on August 20, 2009 that approximately 34,800 cap-subject H1B cases had been processed for FY2010. At that time, an additional 4,000 cases were awaiting responses to requests for evidence (RFEs), as well as there being 5,000 more pending cases. VSC reports that 1,200 to 1,600 cap-subject cases are being received there per month.
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The ongoing H1B cap count continues to be available on MurthyDotCom. The cap count has had irregular movement, with the numbers decreasing in some of the counts. While the VSC is reporting receipt of 1,200-1,600 cap-subject cases per month, it is noteworthy that the count is moving far more slowly. The VSC explained that the cap count is maintained by USCIS Headquarters. The changes in the count can be the result of adjustments to return H1B denials to the total, as well as multiple filings for the same beneficiary by an employer. Multiple filings result in denials of pending cases, or revocations of approvals.
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Consultant Issues : Third-Party Worksites
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H1B cases filed by IT consultants are facing strict scrutiny. One important issue is the need for proof of the specific work to be performed at the third-party worksite. The U.S. Citizenship and Immigration Services (USCIS) will not accept a statement regarding the duties from the petitioning consulting company alone. The VSC confirmed that a letter from the end client is acceptable as proof of the specific assignment. This may be submitted in lieu of the contract for the work (which is often the contract between a mid-vendor and the end client). According to the VSC, it no longer requests these contracts in its RFEs.
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IT consulting companies must be aware of the need for proof from the end client, and this should be considered prior to filing the case. It should no longer come as a surprise request in an RFE. The need for this letter, as proof of the nature of the position, should be discussed with the end client in advance. Issuance of such letters is becoming a routine practice for companies wishing to engage the services of IT consultants. Companies that may have been reluctant to issue such letters at one time have found it necessary to revise their policies, if they require IT consultants.
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Conclusion
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The change in VSC policy regarding end clients is helpful. Contracts often contain confidential information. They are also often general in nature and may not carry the specific information needed by the USCIS to determine the job duties to be performed under the H1B petition. The end client letter can provide this information in sufficient detail.