These are the top things staffing firms and their clients need to know now about H-1B visas according to our friend and expert Immigration Attorney, Helen Konrad.
All employers have felt the sting of the random H-1B lottery for many years, with demand far outpacing supply. But in the past year, we have also seen requests for evidence in 45% of the filings and outright denials in nearly 20% of the cases. If we looked at H-1B petitions filed just by staffing firms for third party placement, I guarantee that those numbers would be doubled. But all is not lost. It is still quite possible to get H-1Bs approved for third party placement, even in this environment, by focusing on the core elements of H-1B eligibility and not getting side tracked with too many supporting documents. Here are the top things staffing suppliers and their clients need to know about how to successfully file and obtain an H-1B visa.
First Things First
To qualify for H-1B, an individual must have:
- A job offer that requires at least a Bachelor’s degree or higher in a specific field(s) of study;
- The individual must hold that type of degree; and
- The H-1B sponsor must be the employer with the “right to control” the employee.
Citizenship & Immigration Services (“CIS”) first looks to the job offer. If the job requires employment at a third party site, CIS believes that the end client is the one who is defining the project duties and requirements; therefore, it is critical to provide evidence of the project directly from the end client.
This evidence can take different forms. The best and most ideal option is a letter directly from the end client confirming:
- The contractual relationship between the parties;
- The job duties;
- Degree requirement, including fields of study;
- Project is “on-going”; and
- Employee is NOT a direct or joint employee of end client or MSP, but rather solely an employee of H-1B sponsor who has the right to control the employee.
Make a Case CIS Cannot Refuse
With this singular piece of evidence, nothing else is required from end client or mid vendors to support eligibility for H-1B. No MSAs, no letters from mid vendors, no proof of performance evaluations, no org charts, nothing. Following that strategy, our office has had less than 1% denial rate. But the problem is that so many end clients are resistant to providing this kind of template letter, fearing that somehow it supports an employment relationship with end client. Nothing could be further from the truth.
Here are the five ways a letter from the end clients can make or break your case:
- A direct letter from end client confirming that H-1B is NOT a direct or joint employee of the end client or mid vendors (if any) puts the end client on record about the independent contractor relationship. Failing to submit the letter is what invites the possibility of an employment relationship being imputed to the end client;
- A direct letter from an end client greatly reduces the chances of getting H-1B denied, improving the stability of the workforce assigned to the project. Failing to provide the letter increases the chances of denial and disruption of the project.
- A direct letter from the end client greatly increases the chances of a three year approval. Failing to provide the letter greatly increases the chances of either a denial or an approval that is limited to the expiration date of an SOW, which may only be valid for a few months.
- A direct letter from the end client greatly reduces the administrative time that the end client must spend responding to requests for documents or updated SOWs on H-1Bs with shortened approvals. Failing to provide the letter requires all parties to revisit the issue multiple times a year.
- A direct letter from the end client eliminates the need for MSA, which preserves confidentiality of negotiated terms in MSA. Failing to provide the letter adds to documentary burdens for all subcontractors.
Keep It Simple
There’s a lot of confusion and anxiety when it comes to working with H-1B visa holders, particularly since the filing process has become highly scrutinized. But the good news is it doesn’t have to be so complicated. Like so many things, communication is key. Having conversations with end client seems more uncomfortable than it is. If you’re looking for a way to build a rock-solid case for H-1B candidates, start with a dialog with the end client, and end with a letter. It’s incredible what a difference that approach makes, and the result is a much more successful H-1B program, which in turn attracts the strongest talent.