H1B Visa Employer – Employee Relationship Details by USCIS – Neufeld Memo

In H1B Visa News by Kumar242 Comments

USCIS released this new Guidance Memorandum on Establishing the “Employee-Employer Relationship” for H-1B Petitions explaining clearly the description of Employee and Employer relationship and what USCIS  would consider before they approve H1B visa petitions starting from 2011 Quota. They had to release this because of two supreme court cases related to H1B Employee Employer relation issues.

Below are some of the very key points of the Employer -Employee Relationship

IT Consulting Companies as H1B Employers:

One of the very common things we see in the IT Consulting business is a scenario as explained by USICS as  below

“Third-Party Placement/ “Job-Shop” The petitioner is a computer consulting company. The petitioner has contracts with numerous outside companies in which it supplies these companies with employees to fulfill specific staffing needs. The specific positions are not outlined in the contract between the petitioner and the third-party company but are staffed on an as-needed basis. The beneficiary is a computer analyst. The beneficiary has been assigned to-work for the third-party company to fill a core position to maintain the third-party company’s payroll. Once placed at the client company, the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no propriety information of the petitioner is used by the beneficiary to complete any work assignments. The beneficiary’s end-product, the payroll, is not in any way related to the petitioner’s line of business, which is computer consulting. The beneficiary’s progress reviews are completed by the client company, not the petitioner.  [Petitioner Has No Right to Control; No Exercise of Control].

If you look in the last line, USCIS consider this kind of scenario that the petitioner has No Right to Control or No Excerise of Control.

What does “No Right of Control” mean for filing H1B visa Petition ?

It is stated by USCIS that ‘USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.’  Here the H1B sponsoring company is the employer is Petitioner and Beneficiary is the person who is seeking H1B and planning to work as consultant for the employer.  USCIS mentions that the H1B petition filing company must clearly show that the employer-employee relationship exists between the H1B sponsoring company and the person they are sponsoring H1B visa and H1B sponsoring  company has the right to control the beneficiary’s work including ability to hire, fire and supervise the beneficiary. The sponsoring company should submit proof for the duration of the H1-B validity period. There are a set of requirements they ask for. USICS determines the case approval based on the information submitted. They can deny if the submitted proof documents are not clear.  For sake of clarity, details are posted in another article post.  Check the detailed requirements article on Additional requirements for filing H1B visa petition .

What does it mean to all the Small IT Consulting Companies ?

 

It impacts a lot for all the small and mid-size IT companies that work on Job-shop concept by placing consultants at client locations and do not have any direct control over their employees. All these small and mid size IT companies, especially all the Desi Consulting Companies will have a hard time convincing USCIS and providing proof to indicate the right of control. Larger IT companies with on-site consultants doing development/support on behalf of the IT company are in good shape. If the consulting company does not have an implementation on site, then it is hard.

 

What should you look for when you seek employer for H1B visa petition ?

 

Piece of advice based on USCIS regulations, “make sure the IT consulting company you seek H1B visa employment have On site Client project implementations and the H1B sponsoring company will be controlling you, assigning work, giving you pay hikes, etc”. If that is not the case, there is a very high chance that your H1B visa petition will be denied.  Because, as per the regulations, without the above condition, your application will not satisfy the employee and employer relationship and right to control.

Thanks to Joe for sending me the latest info. All the information is publicly available at USCIS website. You should visit USCIS website and read original memorandum for more information.

Here is the original document as released by USCIS H1B Employer-Employee Memorandum

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Comments ( 242 )

  1. amit kumar

    Hi.
    I amit kumar from india.. Now i have doing a bachelor course in health care professionalists.. After completion of my course i want to do work in usa along with master degrees.. So can you help me..how to get H-1B visas.

  2. Pari

    Hi,

    I am on H1B visa working for XYZ employer.
    I am planning to go to India to get my visa stamped.
    If I get rejected in the Visa Interview in India, can my employer fire me?

    Also, is there any other country where I can get my H1B visa stamped?

    Thanks,
    Pari

    1. Mayil

      In first round result my file not select in lottery , in my employeer said waiting for final round result, when it will come

      1. administrator
        Saurabh

        Mayil,

        There is no next round. Lottery is done in one round only. Rejection notices will be sent out soon. If you haven’t heard anything yet, then you haven’t made through the lottery.

  3. Ray

    This question about applying multiple H1b’s through differnt employers for the same client. Is this allowed or any risks ?

    I currently work for Employer ‘E1’ for Client ‘C’. E1 is filing me an H1B application for FY2016. Since, there is a lottery this year, I am asking Employer ‘E2’ to put me an H1b application for the same client ‘C’ (note, that both the employer will be filling an LCA for Client ‘C’ location). Is this case allowed by USCIS ? Are there any risks for petition approval or will get any queries ? [ I heard the cases, H1B’s are being revoked after approval for filing duplicate petitions. ] Please help me to understand – Thanks!

  4. Avvy

    Hi Saurabh,
    I have query regarding HIB Visa, with given below experience how much is the possibility for Visa approval.

    Work Exp:
    Senior Business Analyst 3.6 Years in Mid size software company
    Assistant Manager 4. yrs in Core Manufacturing company
    Education:
    PG MBA
    UG B.Tech in Textile Technology
    Thanks in Advance

  5. aditya

    Hi Saurabh,

    I have one query: I am working for x company in usa on h1b visa for client c1. Unfortuntely my project with client c1 is getting over so later on i have to work with different client so my question is, to work for client c2 my employer needs to file a new petition? Also how much time it will take for paper work if client change.

    Thanks
    Aditya

  6. Varun

    Hi ,

    I am currently working in india for a big it firm.My company filed for my h1b cap extension from india and we submitted client invite letter with an end date of Dec 19. I got the work petition approval on Dec 2. I got questions on visa stamping process
    No since I need to go for visa stamping should I get a New client invite letter. My current project has been extended till March next year. Please consider the fact that I may get stamping appointment dates before or after Dec 19.

  7. Megan

    Hi Saurabh,

    I am on h1b visa and valid till 2016. I am in healthcare. My Employer’s office is in Louisiana and my work location is in Texas. My employer has mentioned my work location in my LCA. My employer has all control on my work and my employer manage the whole department in which I work. If I go India, do you think that it would create any problem in H1b stamping?
    Thanks.

  8. Kiran K Polamarasetty

    Hi Saurabh,

    I got RFE of Employer-Employee relationship. I am having my project upto Dec 31st 2014. My H1B filed in Oct 1st week in regular process and I got RFE on Nov 5th 2014. My employer is pretty sure they can get it. My previous H1B expired in Nov 4th 2014. I would like to know what are the chances of getting it?

  9. Kannan

    Hi Saurabh

    My new employer has filed H1b transfer on normal processing and it took 3 months and I have got a RFE last week asking for 1.Evidence pertaining to the beneficiary’s qualification2. Evaluation of training and /or experience by a college official.3.equivalency examinations like CLEP or PONSI.4. documentation to certify recognition of expertise.5.USCIS determination of equivalency

    I have already submitted equivalency evaluation from a private consulting firm last year and I got my H1b approval already. but I am not sure why they are asking the documents again for my H1b transfer. what are my chances for my approval. I got 10 years of experience but I hold a masters degree in Physics from foreign university. also, I have got few certifications like MCSE, CCNP,ITIL .. Can I show those as well?? I am really confused and let me know if I am in danger that my visa get denied???

  10. SyamPrasad P

    Hi All,

    I have valid H1b visa with employer A but i never traveled to US and also i have resigned this company A. but now i checked with one consultancy they people are telling first come to US on current H1b visa later we will transfer your visa to our company that they will process with in 20 days.

    my question is will it be legally correct? and can i travel to US in this case? if i travel to US in POE what kind of questions i may face?

    Thanks
    Syam

  11. Knahs

    I received a rfe in June stating the above, employee employer relationship. Unfortunately I am in a small consulting company with no onsite client projects. My company is pretty confident they will get it, what are my chances?

  12. Santhosh

    Hi Saurabh

    I have a valid visa till Apr 2015 and I had to shift my employer to join in another project. My previous project was a EC model, however this time it is E-V1-V2-C model. V2 is the implementation partner for the end client. My new employer has applied for a H1 transfer in regular mode with initial set of documentations that we have. I don’t think V2 and end client would give Client letters as they are big organizations however my employer says that it would suffice if we just have V1’s client letter and a PO and/or MSA between V1 and V2. We have the V1’s client letter and a contract between my employer and V1. I am planning to move it to Premium at an additional cost in order to know the result quickly with the above documents with no client letter from V2 or client. Can you please suggest if this will be a successful case? Looking forward to hear from you. Thanks.

    1. administrator
      Saurabh

      Santhosh,
      This can result in following issues:
      1. I have seen queries being raised asking for contracts b/w all entities to set-up the chain. As you will be mentioning C as the end entity, USCIS may ask for all contracts to be sure that C indeed is the end-client. This also includes verification by calling V2 or C.
      2. They can also raise query on employer-employee relationship. How does your employer plan to oversee/control your tasks/activities/progress if there is V1 and V2 in b/w and the client has contract w/ V2 w/ no insight into E.

      Do you plan to join the new employer soon after the transfer is filed or after you receive the approval notice? Personally, I would go w/ the latter as there is a good chance of running into RFEs (and possible denial). What does your H-1 attorney has to say about this (your employer seems confident though)?

      1. Santhosh

        Thanks for your reply, Saurabh. I have already joined the new employer with H1 receipt as they were confident of getting this through and also due to the pressure from V2 to join in the project. My employer’s immigration team says that the only lacking evidence right now is a client letter (or an email) from the end client(C). I have my end client’s badge/swipe card which also can be used an evidence is what they say. I dont think I can move back to my old employer as well at this time due to other issues. The only way is to move forward with my current situation. Can you suggest what are the other docs required which can make this a successful case? As I said earlier, we have E-V1 contract, V1-V2 PO and nothing for V2-C except that I am trying to get an end client letter from C. If it doesn’t work, it looks like I might get onto a deep trouble. Please help with your suggestions.

        1. administrator
          Saurabh

          Santhosh,
          There is not much you can do now except wait to see how it turns out. If you are not confident about the transfer, then be on the lookout for another employer who can initiate the transfer in case this petition gets denied.

          1. Santhosh

            Hi Saurabh
            I have somehow got a letter from V2 but could not get anything from my end client(C). Again V2 is the implementation partner for C and they are not in a position to give out MSA between V2 and C. In this case, what other additional documents would make my case stronger? Please suggest. Thanks.

          2. administrator
            Saurabh

            Santhosh,
            You can submit a letter from your employer vouching for the entire chain and excuse that C doesn’t issue client letters. It is up to your attorney on how to frame the response.

      1. aditya

        It will take same time as it takes for new petition. However, once your employer receive receipt for transfer you can start working for new client.

  13. Rana

    Hi Saurabh,
    I will be completing my studies in USA on May 4 and have applied for OPT card. My question is: Is it risky to return to India before I take up employment in USA in June? BTW, I have an offer from a reputed firm in USA who will be sponsoring visa in 2014. Also, how difficult would it be for me to bring my wife as a dependent in USA while I am on OPT?

    1. administrator
      Saurabh

      Rana,
      Yes, in my opinion you should not leave after completing your studies but before joining the new job. Once you start working on OPT, it will be much easier to travel in and out of country.

      1. deshika

        hi saurav need ur help

        hi i have a question for u so when u got rfe ur status might be respond to rfe and when u replied to rfe what is ur status bcoz i got rfe and i responded back to rfe about 10 days back and still showing respond to rfe is it correct or my status should change toome thing else
        any early answers would be appreciated

    1. administrator
      Saurabh

      Varun,
      First, please do not address me as Sir 🙂

      Second, to move to H-1, she needs to file an employer willing to file H-1 petition for her. They can file H-1 w/ COS from H-4 to H-1. Once approved, she can start working on H-1 on COS effective date. As the new cap opens in April, you should find an employer ASAP.

      There are other articles on this blog that explain how to search for employers, pre-work etc.

      1. Chandran

        hi Saurabh, any suggestions when the h1b quota cap would be reached for this year 2014 season ?
        Last year it reached by June & the prev year (2011) it reached only by Jan 2011.

        Thanks,
        Chandran

      2. tina

        Hi Saurabh,
        I am on H4 visa and I found a consultant who is going to file my H1b. I have got 3 yrs of experience, but aftr that I couldnt work since I was on H4 n couldnt convert my H4 to H1.
        So is this career gap of 2 yrs will affect my H1b approval? I have my Masters degree in Computer application(3yrs ) and don’t have any education discontinuity except this career gap. Please give me a suggestion on the approval
        Thanks a lot in advance.

        1. administrator
          Saurabh

          Tina,
          It will not effect the chances of your H-1 approval. However, it may hamper how the job market looks at you as a qualified candidate – they may consider your skills to be out-dated etc.

  14. Ramu

    Hi,

    Is it mandatory to have valid passsport for the application of H1B ( at least 6 months).
    My passport is due to expire on 21st APril 2013. Applied for the ReIssue , and will be delivered in less than a week.

    1. Amar

      I think it is not mandatory for H1-b petition filing. But this is important in visa stamping, you’ll have to produce both renewed and recent previous expired passport during visa interview.

        1. administrator
          Saurabh

          Ramu,
          Although I don’t it needs to be valid for at least 6 months for the purpose of H-1 filing, from your initial post it looks like you will receive the renewed passport in a week. As the petition needs to be filed in April, you have enough time. Maybe I am not getting what the concern is here.

  15. sreeshma

    Hi,

    I have been working in Cognizant for past two years in India . My husband also working in the same company but he is in U.S.A. with H1b visa . I am planning to go to U .S.A. for 3 months leave from my company in April month. Is it possible for me to change my visa status to H1b during that time ?

    Thanks

    1. administrator
      Saurabh

      Sreeshma,
      Not possible during those 3 months. The filings will start in April 2013 and one cannot start to work until Oct 2013.

  16. Jack

    Hi Saurabh,
    I applied for my H1b through a small consultancy Company “Z”. At the time when i filed i was working with company “A” but just after receiving my reciept number i had to change my job due to some circumstances to Company “B”.
    Currently my case is still in process but i want to know if this gets approved and consulte calls me for interview will this affect my interview and my VISA issuance by any ways?
    Please suggest.

    1. administrator
      Saurabh

      Jack,
      This will not cause an issue during stamping. It is ok to change employer from X to Y while the petition has been filed by Z.

  17. Huma

    Hi,
    I am from Pakistan. All above questions i see are for india. I dont know its appropriate to ask here or not but here’s my query.
    I filed my H1b in 2008 and after interview in sept 2008 they put my case in administrative processing. Then in september 2010 they stamped my visa. I got H1B extension in september 2011 for next 3 years.
    Currently my work situation is like my employer->vendor1->vendor2->client.
    Now i want to travel to my country. What do you suggest . Do you think there are chances for denial.

    Regards,
    Huma

    1. administrator
      Saurabh

      Huma,
      The model you are in working-in is highly prone to 221g and eventual rejection. I would suggest working in EC or at least EVC model. In addition, you may be having a common muslim name which could also lead to administrative processing.

  18. Waamax

    Hi Saurabh –
    My H1B petiotion was filed in Nov 2011. But it was put on hold with RFE (Request for evidence). I work in big IT consulting company and my legal team is preparing for the RFE. How likely is it for the USCIS to deny the H1B petition? The team is planning to file for the RFE in May first week with premium processing. Also that my opt expires in June 6 and I cannot extend my opt under STEM.

    So what is the solutions if they deny (god forbid) the petition? Do i have the time (considering the results come within 15 days) between may 24 to June 6 to refile the H1 again? If i refile the H1 again, what are the chances? I am still not sure why they need the RFE.
    Thanks in advance.

    RK

    1. administrator
      Saurabh

      Waamax,
      Chances of approval will depend upon the reason for RFE, documents your employer will submit and how much USCIS is satisfied w/ the response.

      You can have another H-1 filed until June 6 and this will give you the opportunity to continue to stay and work on the basis of cap-gap until Oct 1 or H-1 denial date (whichever is earlier). You can also have another H-1 filed until Aug 6 (i.e. OPT expiration date + 60 day grace period), and this will give you the opportunity to continue to stay in US (and NOT work) on the basis of cap-gap until Oct 1 or H-1 denial date (whichever is earlier).

      Does that clarify?

  19. Siri

    Hi Saurabh,

    I pursued my MS (2004) in USA, there after , I worked and also started own Project management consultancy in USA itself, I stayed there for nearly 6 years and moved to India in 2008 and got married. I have set up same business in same line. Now I wish to move to USA, I have a friend of mine who is in Truck business thinking of starting a business along with him in Construction Management, which is not yet established. My query is can he send invitation letter for my Visa process, as he is in different field(Truck Business) right now, will it be valid/ Acceptable during visa processing and also could you please tell me know like , in this scenario what kinda question they might ask at the interview. also, suggest me the best way to process my Visa to get stamped . ( FYI my H1 visa got expired on Dec’10).

    Hoping that you will reply me soon.

    Thanks,
    Siri

    1. administrator
      Saurabh

      Siri,
      If the position requires specialized knowledge w/ at least 4 years of US Bachelors degree and if you qualify for the same position based on your education/experience, then H-1 can be filed. Typical question may range from your qualification, to specific job duties, employer background etc. I would suggest hiring an attorney to assist the firm in filing your H-1.

    2. Siri

      Hi Saurabh,

      Thank you for the quick reply, but i’m not clear about the Invitation letter part in Visa processing. If my friend who, is in Truck business, which totally different bussines line from mine. my question is Can my friend send me invitation letter, will it be valid to submit. What should be the letter content as we are in two different businesses.

      Just correct me if im wrong, irrespective in which industry an Invitee is in doesn’t matter to send an invitation letter.

      Kindly, do the needful

      Siri

      1. administrator
        Saurabh

        Siri,
        Processing for H-1 visa, doesn’t involve just a simple invitation letter. The employer will have to file the LCA w/ DOL. Once certified, they need to file a petition w/ USCIS and once approved you can go for H-1 visa stamping and finally travel to US.

        Or are you looking for a different visa?

  20. Nomi

    I am glad for these new rules. Eff these small time penny-pincher Desi IT Consultancies. They have been been hogging cash and abusing system for quite a while now. Cant wait to go back to my previous IT Consulting company and laugh at their faces for screwing me over in the past.

  21. Jot

    Hi Saurabh,

    Im currently in H4. I have done my MSc (IT) (thro’ distance education and BSc (Physics) in campus) in India and have around 8 years of IT experience.

    1. Planning to apply for H1 this year.. But, with the new H1 rules, Im also confused whether I should go for a Masters in US and then, go for H1 ? Pl suggest which one will be better.. as I need to go to sm Desi consulting for H1.

    2. If studying is opted, should I go for MS or MBA (both are my preference, but MS will be a repetition to my MSc..). Does STEM category courses have some advantage over the MBA in H1 as its for the OPT?

    Kindly, help me with your valuable suggestions.

    Thanks
    Jot

    1. administrator
      Saurabh

      1. I would suggest getting your education and experience evaluated by an education evaluation agency. They would let you know what’s the equivalent of US education you have and then you will know whether you have the required experience to become eligible or not.
      2. I can’t comment whether you should go for MS or MBA as it depends upon what you want to do etc. IMO, don’t go for an education just to earn bread, go for an education that you will enjoy. One shouldn’t end up in a workplace where the person looks at clock anxiously to strike 5 PM; one should go to a workplace where one looks forward to 9 AM. BTW, OPT extension is not applicable to MBA, but to MS done in STEM category.

      1. Jot

        Hi Saurabh,

        Thank you v much for ur suggestions..

        1. I will definitely get my education evaluated from an agency. Also, Is there any place how can we evaluate good consulting firms that files H1?

        2. If studying, I have decided it to be MS in Information Systems or MBA (specialization in IS again). But, confused only with MS/ MBA. I understand MS has 29 months of OPT and MBA has 12. But, my query is “Is there special advantage given to MS over MBA in H1 processing in Adv degree cap”?

        Thanks
        Jot

        1. administrator
          Saurabh

          1. You will have to rely on online reviews, past filings (available at FlcDataCenter site), and general feeling one gets after talking to the company. For example, if they ask for money, then that’s the 1st red flag, if they are not professional then that’s another flag, if their interview process is a mockery of the interview system, then that’s another etc.

          2. There is no advantage given. However, USCIS will look into whether you have the right experience and education for the offered H-1 job. So for example you do MBA and then join IT on H-1, then USCIS can question how the two are related.

  22. Sreejith

    Hi Saurabh,

    What is the maximum time that a petition can stand in RFE status? Mine was submitted on SEPT 01-11 (Normal processing). Got RFE on NOV 30 2011. Still it’s the same. I did not receive any response from my employer asking for any info. Suppose my company has responded to that RFE, What can be the maximum lag between that day and RFE response review?

    1. administrator
      Saurabh

      Unfortunately there is no maximum. They often publish 60 day as the timeline, but in reality it can take longer up to 6 months. Check w/ your employer if USCIS has indeed received the response. The employer can then call USCIS to follow-up on the same.

  23. Saketh

    Hi Saurabh,

    Your immediate replies to users makes me post my qns here..

    My H1B visa was filled for a client in oct’11 and soon after a month I was moved to different client. Now I received an RFE for client support letter. wat would be the next step in my case. I have these client in two different locations. Btw I work for one of the India’s top IT gaints.

    Thanks
    Saketh.

    1. administrator
      Saurabh

      Usually this is a tricky situation.
      – if you submit old client letter that would be incorrect as you no longer work for that client
      – if you submit new client letter then that would not be in sync w/ the LCA which was filed for another location

      I have not read of any experience that give advantage to one over the other. Please consult w/ your lawyer about the best course of action. As you are working for a top IT giant, their attorney should be able to provide a good advice.

  24. Ash

    Hi Saurabh,
    My husband works on H1b and i am in H4,he got his H1b extension till Dec 2012.We are planning to visit India in May 2012,and get H1 and H4 stamping.
    Will there be any issue to get H1b stamping with Petition valid only till Dec 2012?

    1. administrator
      Saurabh

      There wouldn’t be any issues b/c of the remaining validity of the petition. The officer would also look into other documents before making the final decision.

  25. Ramakanth

    Hi,
    I am planning to go India and also get my H1 visa stamped, and h4 for my wife. Please let me know, do we need to submit the documents before the interview for HYD consulate? and if so what are they? Please clarify me.
    Also, my h1 expires on May 24, 2012 and I filed for an ext with PP and the exp will be May 24, 2015. In DS form I used first I-797 petetion number and when I go for stamping I will have 2 petetions, so which one do i need to use? and Do i need to resubmit the DS form with new I-797 petetion number or not..Please let me know.
    Thanks,
    Ramakanth.

    1. administrator
      Saurabh

      For Hyd consulate, one needs to submit all the documents in advance. You can go to Hyd consulate website to see how soon they need to be submitted and the list of documents. In general documents include:
      – your documents (resume, mark sheets, payslips, W2s etc)
      – H-1 documents (I-129, 797, LCA)
      – employer documents (employment letter, wage reports, tax returns, employee list etc especially if it’s a small to medium employer)
      – job documents (client/project details, SOW etc especially if you are working for a consulting company)

      If your extension has been approved, then you should submit the latest 797 information. This way you will get a visa (if approved) valid until your new petition expiration date.

  26. Sachin Soni

    Hi,
    Is it advisable to go to India on OPT period? suppose i have a job and my employer has not apply for my H1 Visa and i am working on my OPT period?
    Will it create any problem while coming back to US?

    1. administrator
      Saurabh

      You can travel on OPT as long as you are currently employed. Before leaving US, make sure you get your OPT card endorsed by your school DSO for travel, and carry latest payslips and employment verification letter. If your F-1 visa stamp is still valid, then you don’t need to go for stamping either.

  27. Rohan

    Hi Saurabh,

    I am working towards H1B employment this year and had a query. Suppose I find an employer who is willing to sponsor my H1b and the employer sends my application to USCIS
    1) If my H1b application is currently under processing and I find another employer willing to sponsor me, can that new employer now apply for my H1b although one of my applications is already under process?
    2) What if I find this newer and better employer after my H1b has been granted by USCIS but I have not begun my employment i.e before oct 2012.

    Kindly let me know if it is advisable to stop the search after H1b filing and think of changing employers only after coming to the US or if I can keep looking for a better employer between my H1b approval and Oct 2012

    1. administrator
      Saurabh

      1. Yes
      2. Still yes

      You can continue to search for better employers even after your H-1 petition has been approved. Once your 1st petition has been approved, all subsequent petitions will be cap-exempt (aka H-1 transfer) and no payslips will be required as long as you have not spent time in US on H-1. However, you will have to see if any of those old employers go after you to recover their business losses or not (depending upon what kind of contract you have signed w/ them).

  28. Nikhil

    Hi Saurabh,

    I am in a EVC Model and was with the client on a project that lasted for a year. I am waiting to start with a new project, possibly with a new client(There is a chance that the same client can give me another project but with a different team at a different location). I have a Masters Degree from a US University. I havent been to India in 4.5 years and getting really desperate and also could possibly get engaged (whenever I visit). Is this a good time to visit India considering my last project ended? I got my H1 only this year with the same Employer, so I need to get the visa stamped from the Chennai consulate. Will it be a problem that my current client project has ended and I am in between projects, if I choose to visit India now? What kinda issues will I run into apart from the regular H1 stamping process and the background checks?

    1. administrator
      Saurabh

      As you are working in EVC model and in-b/w projects right now, there is a strong chance that 221g may be issued for additional processing. You may be asked to submit lots of documents including employer-employee relationship, contracts, client details etc. So unless it is really necessary, avoid any trips outside US.

      1. Nikhil

        Thanks for your response Saurabh…
        I do have those relavant documents(well, at least most of those ‘possibly required’ documents) I do have the client and vendor letter and so on. But my concern is the background check failing when they call up my client(assuming I go for the stamping and I get a 221g slip) and they are informed that my project with them has ended. Thats a red flag, right there, isn’t it?

        1. administrator
          Saurabh

          You cannot use old client documents for visa stamping as that would fail during background check. It is advisable to find a new client and then go for stamping by carrying their documents.

  29. Amar Singh

    Hi Saurabh,

    (one person is working with “X” company in India and holding H1B approved petition, now he would like to switch to “Y” compnay in India), can Y company initiate his H1B transfer.

    As per my knowledge, earlier it was not possible unless untill the person is in USA.

    Thanks,

  30. Sreejith

    Hi ,
    i am on a H1B , which has validity till Sep 2013. i have been in the U.S for last 7 months & my current project is completed , so moving out to a new location & client. my company has filled for the Visa ammendment & they said i will get some authorization letter using which i can start working for the new client until the LCA for new location gets approved by USCIS.
    now while this is in process with USCIS, can i travel to India & come back ? or should i wait until USCIS approves the Visa ammendment for client/location change ?

    1. administrator
      Saurabh

      I think you can travel out of the country. Your H-1 would still be processed but you will not get an I-94 extension. When you travel back to US, you will get a new I-94 which will govern how long you can stay in US and work at the new location.

  31. siva

    Hi Saurabh,

    On Dec 6 2011 we applied for my H1B extension in Premium Processing and dec 14 2011 we got the RFE stating Employer – employee relationship.

    Can you please advice me the documents which we need to submit to the USCIS.

    Thanks a lot

    Siva

    1. administrator
      Saurabh

      Employer needs to show how they control your day to day tasks and activities at the client site, who you report to at client site and who approves your work etc.

  32. Alok

    Hi,

    My petition was filled on 18 Nov under premium category with my company.
    I am checkng the status of my it on the uscis site and it shows that “Request for additional docs” sice 29 Nov
    .I have asked my employer whether additional docs need to be submitted he says its not a problem lawyers are taking care of it.
    Yet its been more than 20 days no change in the status.
    Can i know the possible issues.

    -Alok

    1. administrator
      Saurabh

      Usually the employer is given 60 days to submit response to the RFE. The status would change once the response has been submitted. Check w/ your employer as to when they plan to respond to the RFE.

      1. Alok

        Thanks a ton saurabh.

        My employer will be submitting the necessary docs.

        How much time is required after this for petition evaluation?

        My visa is filled in premium category.

        -Alok

        1. administrator
          Saurabh

          They may take 2-6 months to process the response. Although they publish 60 days as response review time, but in reality it can take longer.

  33. Kasun

    I’m currently working in US under consulting company. I have multiple layers ( 3 layers) between my consulting company and client site. (my consulting company -> other consulting company -> another consulting company -> client site).I got approved my H1B so I hope to go next year for visa stamping. Will it be get reject my visa stamping due to multiple layers? I’m highly appreciative your comment on this. Thank you.

    1. administrator
      Saurabh

      You are working in EVVC model and that has a pretty high probability of getting denied. Start looking into more simpler models (EC is still ok).

  34. Raji

    Hi ,

    My employer has filed my Visa on Nov13th 2011 . Am i on the safer side to get the file number ? I havent received my file number yet . How many more days will it take?

    1. administrator
      Saurabh

      Employer/attorney should have received the receipt number now. Unless your employer/attorney really screwed up, your petition should have reached USCIS office by Nov 22. Ask your employer/attorney if they have received it.

  35. tavar

    My employer filed H1B extension on 05/2011 based on my I94 expiring 06/2011, they did requested extension till 12/2011 calculated based on the balance of H1B 6th yr. I am in last month of expiring petition still pending in USCIS under security check. Can I still work in US? going for premium upgrade…what would be consequences against if crosses requested last month ?

    1. administrator
      Saurabh

      You can stay maximum up to 240 days after I-94 expires on a pending extension. Once that number is hit, you will have to leave US (or earlier if H-1 extension gets denied). Your current petition has already expired, right?

      1. tavar

        yep, current expired already. Extension filed has been pending …Wondering need to know if filed extn for 6 months can I stay more than 6 months with pending application (as per you 240 days) ?

        1. administrator
          Saurabh

          If the petition was requested only until 12/2011 based on your 6 year clock, then you should leave by that date. One can stay in US for up to 240 days when not bound by this 6 year clock.

  36. varun

    First of all, thank you for such a good H1b forum. I am looking to move to US asap and had a query. Is it true that the quota for regular h1b cap has been filled and USCIS wont be accepting any more H1B petitions until april 2012? If that is true, can I only come to US now latest by Jan 2013 ? Please let me know…

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