Filing H-1b applications for a startup company can be challenging, but it is also a very creative exercise. I have found filing defensively reduces the chances of an RFE (request for evidence) from USCIS, which sometimes can take as long as an original filing to complete and mail.
2. Difficulties Start-Up Face When Filing H-1Bs
New companies have a hard time proving their existence as an organization. Very often, when you start filing for a new company, they have never dealt with immigration issues in the past; there is a steep learning curve caused by a delayed awareness for the need for technical support workers. New companies have no idea of the complexity and time delays experienced at Department of Labor (DOL) and USCIS, so the first task of the attorney is to educate the company hierarchy. The company needs to appoint one person to disseminate information; that person should also be privy to sensitive investor and financial, as well as technical information, about the company. New companies often do not have hierarchy or an organization chart. These need to be created. Websites describing the company’s process, as well as demonstrating the requirements of the jobs that the company wants to fill, are also useful. If the company advertises on online job search engines detailing job requirements, training and experience are a definite plus.
3. Documentation and Evidentiary Support
Apart from the usual DOL documentation, the new start up has to demonstrate that they are an entity registered with the State and Federal government. As far as filing taxes, quarterly returns and employee annual and quarterly returns are also needed. While it is not necessary to disclose the names and social security numbers of employees, it adds to the case if at least initials of names and last 4 digits are disclosed, along with salary and title of position in a payroll summary. Documentary evidence to demonstrate complexity of the job to be filled can be established by advertisements on online job search engines, press releases, technical screens for potential candidates, as well as detailed job requirements with specific tasks. An organizational chart specifying the supervisor’s ability to hire and fire, which means a description of the supervisor’s job description is very key. Of the usual documentation of educational, experience and other visa related questions need to be answered.
4. Answering the Request for Evidence
My brief remains that properly documented, which means defensively, an initial application should not trigger an RFE. Our task remains to represent the employer petitioner, while making it easier for the adjudicating officer to make a decision to approve our application.
5. Whether or Not to Do Premium Processing
I have often heard that premium processing triggers an RFE. What I have also learnt is that if there is a document list that demonstrates ample, targeted evidence qualifying the employer, the beneficiary and that the job requirements adequately meet statutory needs, we are out of RFE territory. Then the only RFE would be a one liner, which can be quickly answered by sending a fax and shortening the wait time for the approval.
Defensively document your client’s application to prevent the issue of an RFE and obtain an approval in record time.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Attorney at Law
Copyright 2011. All rights reserved.
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