The USCIS released the number of receipted cap-eligible H-1B visa petitions from April 1, 2012 to June 1, 2012. As of June 1, 2012, approximately 55,600 H-1B cap-subject petitions were receipted. The Annual Cap amount for H-1B regular cap is 65,000.  Additionally, the USCIS has receipted 18,700 H-1B petitions for foreign workers with advanced degrees (master’s degree or higher). The Annual Cap amount for H-1B Master’s Degree Exemption is 20,000.

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CASE: Employment-Based Adjustment of Status / Derivative Beneficiary
CLIENT: Filipino
LOCATION: Des Plaines, IL

Our client came to the United States in 2007 with an H-4 visa as a dependent of his H-1B visa holding wife from the Philippines.  His wife was working as a registered nurse in the United States. His wife’s previous employer filed an I-140 petition under the EB-3 classification on her behalf.  The petition was later approved, and our client’s priority date was sometime in August, 2001.  Through our legal assistance, our client’s wife obtained her green card in March 2012.

In February 2012, our client sought legal assistance from our office regarding his adjustment of status application.  Based on our client’s wife’s approved I-140, our client was eligible to file for adjustment of status.  Our firm prepared and filed the I-485 Adjustment of Status Application and I-765 Employment Authorization Documentation on February 20, 2012.  Everything went smoothly and the receipt notices and fingerprint appointment all came on time.  On May 16, 2012, the USCIS Nebraska Service Center approved our client’s adjustment of status application.  After a long wait, our client finally became a green card holder.

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CASE: H-1B Visa Petition
PETITIONER:  Financial Investment Management Company
BENEFICIARY: Associate Financial Analyst

Our client is a financial investment management company located in Indianapolis, IN.  They contacted our office in late March to seek legal assistance from our office for their foreign employee.  Their foreign employee was a former client of ours, and he got a J-2 waiver approval through our representation before. The beneficiary obtained his Bachelor’s degree in Business/Finance in the United States. The proffered position for the Beneficiary is an associate financial analyst.  We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelors Degree in Business / Finance or its equivalent.

Once retained, our office filed the H-1B visa petition with various supporting documents on May 1, 2012 via premium processing. There were no Requests for Evidence during the processing of the H-1B.  Eventually, our client’s H-1B application was approved on May 12, 2012, only 11 days from the date of filing. He can now work for his employer for three years on an H-1B status starting October 1, 2012. He will continue to work there on an OPT in the meantime.

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CASE: H-1B Visa Petition – Response to Request for Evidence
PETITIONER: Software Distributor
BENEFICIARY: Nepali
LOCATION: Omaha, Nebraska
ISSUE: Specialty Occupation / Degree Issues

Our client is a nationwide stocking wholesaler of voice, data, and outside plant products in Nebraska. The beneficiary is from Nepal who obtained a Master’s degree in the United States and worked for his previous employer under an H-1B.  The Petitioner-Employer filed an H-1B application (Change of employer) on behalf of our client on November 2.  However, on December 1, 2011, the USCIS issued a 5-page Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation.”

The USCIS was skeptical and argued that the proffered “Web Developer” position in Petitioner’s business did not qualify as a “Specialty Occupation”. The main issue for the client’s H-1B application was whether the “Web/Software Developer” position for the Petitioner required a bachelor’s degree or its equivalent to make this position a “specialty occupation.”

After Petitioner-Employer received the Request for Evidence (RFE) from the USCIS, our client consulted with our firm and eventually retained us to prepare the response. We gathered supporting documents from both the Petitioner and Beneficiary and did research on their industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position.

In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations.  We provided evidence that the position of Web/Software Developer is a common position required by similarly sized software developer or distributor companies with similar annual incomes. We provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Web/Software developers.  Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty.

Our office filed a 9-page Response to RFE brief with 13 exhibits to the USCIS California Service Center on December 28, 2011.  On January 11, 2011 our client’s H-1B petition was approved.  Now our client can work for the petitioner on an H-1B status for the next 3 years.

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CASE: H-1B Visa Petition
PETITIONER:  Online Grocery Store in Washington, D.C.
BENEFICIARY: Singaporean Business Development Director

Our client is an online grocery business and is one of the first D.C-based businesses to present a selection of locally and seasonally sourced products on a user-friendly website, combining a simple ordering process with a highly professional, same-day delivery service. They contacted our office in late July of 2011 to seek legal assistance and we met them at our Washington DC satellite office prior to retention.

The beneficiary obtained his Bachelors degree in Economics in the United States and completed his Masters degree in Georgetown University. The proffered position for the Beneficiary was for a business development director which we argued qualified as a specialty occupation.  We proffered that the minimum requirement for this position is a Bachelor’s Degree in Economics or its equivalent.

Once retained, our firm prepared and eventually filed the H-1B visa petition with various supporting documents on September 27, 2011 via premium processing service.  The USCIS Vermont Service Center then issued a Request for Evidence (RFE) on October 13, 2011.  The USCIS argued that the proffered position does not qualify as a “specialty occupation.” They claimed that the business was too small, with only 6 employees, and that a Bachelors degree was not required for this position for “grocery” businesses. In response to the RFE, our office asserted in an 8-page response brief with 23 exhibits that the nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a Bachelors degree.  Moreover, we argued that the degree requirement is common to the industry in parallel positions among similar organizations. We explained that running an online grocery business is more complex than running a small convenience store or small grocery, especially since our client specialized in high-end products.

Our office filed the response to the USCIS Vermont Service Center on January 6, 2012.  Our client’s H-1B application was approved 11 days later on January 17, 2012.  Now the Beneficiary can work for the Petitioner on an H-1B status until September 30, 2014.

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CASE: H-1B Extension
PETITIONER: Hospital
BENEFICIARY: Physician, Filipino
LOCATION: Erie, Pennsylvania

Our client is a physician from the Philippines who currently works at a hospital in Erie, Pennsylvania with a valid H-1B visa.  His H-1B status was about to expire before he retained our office on July 21, 2011.  Our client sought legal assistance from us for his H-1B 3-year extension.

Once we were retained, our office promptly prepared his H-1B extension application.  The Labor Condition Application was filed and approved and eventually our office filed the H-1B extension application on August 12, 2011 to the USCIS Vermont Service Center. There was no Request for Evidence with the filing and the Petitioner did not opt for premium processing. The case was approved on January 6, 2012. The H-1B is good from September 22, 2011 to September 21, 2014.

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CASE: H-1B Visa Petition (Change of Employer)
PETITIONER:  Hotel-Chain Company
BENEFICIARY: Hotel General Manager

Our client is the nation’s fastest-growing extended hotel stay chain company in Ohio. They contacted our office in early June to seek legal assistance from our office for their foreign employee.  The beneficiary is from Pakistan and has extensive work history in the United States as a General Manager in one of the leading brand hotels for 13 years.  This proffered position is a “specialty occupation” because the minimum requirement for this position are a Bachelor’s Degree in Business Administration / Hotel Management or equivalent.

The foreign beneficiary in this case already had his H-1B visa from his previous employer in a similar industry.  However, his H-1B visa was not expired yet, and he wanted to extend his H-1B status based on a change in employer.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on June 20, 2011 via regular processing.  Since this petition was based on a change in employer, it was exempted from the annual H-1B cap.  On August 12, 2011, the USCIS issued a Request for Evidence (RFE) regarding his past pay stubs to evidence his continued H-1B status. During the validity of his previous H-1B status, his previous employer was acquired but everything pertaining to his position, from the duties to the location to the salary, stayed the same. But he did not file an amendment of his H-1B.  In response to that issue, our office promptly filed a Response to the RFE on August 30, 2011 which included the paystubs from the previous two employers. We cited INA § 214(c)(9)(A)(ii) which states that “an amended H-1B petition shall not be required where the petitioning employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation, where a new corporate entity succeeds to the interests and obligations of the original petitioning employer and where the terms and conditions of employment remain the same but for the identity of the petitioner.”

Eventually, our client’s H-1B Petition was approved on September 20, 2011.  Moreover, the Beneficiary’s wife and minor son’s H-4 status was properly changed as well. Now the Beneficiary can continue working for his Petitioner-Employer as an H-1B visa holder until 2013.

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The USCIS updated its H-1B guidance to clarify the employer-employee relationship standard for self-employed individuals. The memorandum does not change any of the requirements for H-1B petitions. Currently, the CIS requires that a U.S. employer prove that it has an employer-employee relationship with the beneficiary in that it may hire, pay, fire, supervise, or otherwise control the work of any such employee. Other requirements include establishing that the beneficiary is coming to the U.S. to work in a specialty occupation, showing that the beneficiary is qualified to perform that specialty occupation, and the filing of a Labor Condition Application specific to each location where the beneficiary will be working.

But as to self-employed individuals and H-1B petitions, the CIS mentioned that if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. They went on to provide that if the petitioner provides evidence that there is a separate Board of Directors, which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship for H-1B purposes. The CIS cites Matter of Aphrodite, 17 I&N Dec 530 (BIA 1980), which held that the USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner. The memo also stated that several unpublished Administrative Appeals Office (AAO) decisions determined that corporations are separate and distinct from their stockholders and that a corporation may petition for, and hire, their principal stockholders as H-1B temporary employees.

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