By: Shah Peerally Esq.
With our extensive experience dealing with the United States Citizenship and Immigration Services(USCIS), Department of Labor (DOL), and other immigration entities, we have noticed few common mistakes that most small IT companies make. Such mistakes result in lengthy Request for Further Evidence (RFE) or even denials.
As such we have tried to compile in this short release the most common mistakes. Note that the list is not exhaustive; it only includes the common mistakes that our own office have noticed after filing more than 300 cases. We are sure that there are many other mistakes that can easily be corrected. This list is also limited to issues pertaining H1Bs new cases and transfers. We will compile another list for Labor Certifications and I-140 soon. H1B issues (New and Transfers)
1. Location It is a fact that many IT consulting companies operate from small units or even from home. Although those are genuine companies, and most of their candidates work off-site, the USCIS has been asking for more information on the locations. Those include but are not limited to pictures of the inside and outside of the buildings, the occupants of the buildings; the pictures of the interior with the desk and other working materials; site plan, and so on. Companies should know that the USCIS is looking whether it is a genuine business or just operating to defraud immigration to allow aliens to enter. Note that you will need to also comply with the LCA. Any new location for the candidate requires a new LCA. Possible Solution: Make sure that you are operating from an actual location that is not your house. Also make sure that the place have enough workstations to accommodate your candidate when they are not on site.
2. Inability to pay When any new H1B petition is filed, the Employer must prove that the employer should be able to pay this employee. This applies even if the employee is on the bench. Possible Solution: Make sure that the company has enough money in the bank or as asset to pay the employee. Alternatively show that there are end clients to provide work for such and employee.
3. Always pay for employee. There is a misconception that if the employee is on the bench, this employee does not have to be paid. Make sure that they are being paid the amount stated on the LCA. Also you should comply with all the rules on the I9 forms. Solution: Always pay your employees. There are only few exceptions to this rule. Contact us on 510 7425887, we will assess your case on a case by case basis.
4. Have good Website, brochures and flyers to prove the genuineness of your business. Although most IT companies do have a website, they do not always have brochures and flyers to show that the business is genuine. If your business is only to assist immigrant to come to the US, you should stop. Solution: A good website, brochures, publications, and so on.
5. Always inform the USCIS if an H1B employee is leaving. Many IT consulting firms by negligence fail to inform the USCIS that the beneficiary of the H1B is leaving your company. Failure to do so might result in very dire consequences for your company. Solution: Correspond with the USCIS frequently.
6. Refer to an experienced immigration attorney when you are not sure about something It is common that many IT consulting companies will process their own H1Bs due mainly to cost. This is not recommended because the forms involved require a lot of attention to details. A single mistake can cost more than hiring a regular law firm to assist in the procedure. Note that you stay away from Immigration Consultants. They are not licensed and are not allowed to give any legal opinion. Also if you cannot communicate with your attorney, you should think of changing the attorney. Solution: Hire a real attorney (licensed) before moving forward on any case.
7. Maintain good accounting including all H1B receipts It is sometimes hard when you have many consultants on your list to maintain a record of each. However, it is imperative to maintain such a list. Very often the USCIS will require to keep the records of all the approval notices. You should also keep a good record of all the wages paid to the employees. Solution: Have a good accountant to maintain all your records competently.
Our office has successfully processed many H1B cases, and we are regarded as one of the most reliable law firms in the Bay Area. Should you have any questions, feel free to contact us on 510 742 5887 or email us on [email protected] You can also check for more details on our website, www.peerallylaw.com