The Neufeld Memo Bombards H-1B Petitioners: The USCIS Reveals New Weapons in the War on H-1B Consultants

In what can only be described as a war on the H-1B petitions of consulting firms, the USCIS has recently developed new strategies for pushing, or more accurately, pricing small tech firms out of the marketplace. Although contrary to the letter, intent and spirit of the law, the Neufeld memo has spawned a wave of RFEs on the H-1B petitions of H-1B workers in consulting firms. While each battle for H-1B consultants is difficult, the war for H-1B petitions may still be won with truth, documentation and expalnation. Below is a list of recent issues that the USCIS has raised on RFE, initial petitions and extensions and solutions for overcoming such problems.

The latest trick developed by the USCIS on RFE is to ask the Petitioner to prove that all three years of the requested H-1B time will be spent with the Petitioner. This question is asked because it is the practice of many end-clients, preferred vendors and consulting companies to only provide purchase orders for a few months at a time. Even though installation projects of large software systems may take up to five years, current standard operating procedure for tech firms is to only contract for a period of months into the future.

The best evidence to show that an H-1B worker will be placed at the notated site for the full amount of requested H-1B time is to draft and produce purchase orders that are commensurate with the H-1B time requested. This would require a shift in industry practices and thereby accomplish the USCIS policy goal of ensuring that H-1B workers spend no period of time on the bench. Perhaps it is time that tech firms and end clients retreat on this issue in order to win the larger battle: to employ the world’s top consultants. In the post-Neufeld landscape for consulting firms, longer purchase orders are a solution that must be considered and raised with preferred vendors and end clients.

In the absence of a long purchase order, a variety of evidence may be presented in order to show that the H-1B employee will not be placed on the bench. An itinerary of services including dates and locations of tasks to be completed is first and foremost on the list of required evidence. Additionally letters from middle vendors and end clients attesting to the project’s probable time remaining for completion as well as proof of past time spent on such a project, should be included in such an RFE response.

Due to the increased scrutiny of H-1B petitions for consulting firms, initial or first petitions for consultants should always include the following documentation in addition to the traditional list of acceptable proof of credentials and specialty occupation:

1. Schedule of services and site where the job is to be carried out;
2. Signed service contract specifying the circumstances and the period of employment;
3. Employment Offer Letter that plainly details the character of the employer-employee association and tasks to be undertaken;
4. Relevant portions of service contacts with third parties;
5. Agreements between third parties and the ultimate end-client;
6. A clear and professional job description for the Beneficiary’s job.

Much of this documentation was previously only requested on RFE, but now should be presented upfront as a matter of course.

Even those persons who possess approved I-140 documents and have been stationed on the same project for multiple years are now expected to prove the integrity of their continued employment through the production of additional initial evidence such as the following:

1. Pay stubs, Pay Sheet and W-2s;
2. Timecards;
3. Job agenda;
4. Instances of deliverables;
5. Dated employment evaluations.

The attainment of H-1B visas for computer consultants is more difficult than it has ever been. However, with expert guidance, the challenges facing such consultants can be overcome. Please contact The Law Firm of Shihab & Associates Co., LPA if you face or plan to face any of the issues listed above in the future. Our team of legal experts aids companies of any size through the H-1B process on a daily basis.