How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Joseph Your Own Question

Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4979
Experience:  Extensive experience representing employees and management
54899578
Type Your California Employment Law Question Here...
Joseph is online now
A new question is answered every 9 seconds

Dear Attorney, I have been employed with an IT company in

Resolved Question:

Dear Attorney,

I have been employed with an IT company in the past here in US for a Project assignment on H1b. Now i am not working for that firm. My Present company is filing for GC and requested all the previous company experience letters. I have requested the comprehensive letter from the past company but i do not have any response from them since 6 months. please advise that it is fair on the company side, any chances for me to put pressure on company apart from follow up mails from different channels(Manager, staffing agenecy, direct e-mail) please advise!
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello,

To be clear, has only your current company requested this information or was it requested by immigration as well?
Expert:  Joseph replied 1 year ago.
Hello Sirini,

Unfortunately, unless the information is subpoenaed in a court case or in your immigration proceedings, there is no way to compel your previous employer to provide you with a letter for your current employer to apply for a visa on your behalf.

Legally, you are limited to follow up emails, calls, and other methods of communication to get the letter your current employer is requesting. It would probably be best to have people from your company continue to contact them. Hopefully, they would be satisfied with a verbal endorsement if they cannot get a letter from your previous employer.

It definitely is unfair and wrong for them not to provide you with the requested information, but I regret to inform you, that absent a court case or immigration proceeding, there is nothing you can do to actually compel them to provide the requested letter.

Please let me know if you have any clarifying or follow up questions regarding any of the above.

Thanks and best of luck!
Customer: replied 1 year ago.

Dear attorney, Thanks for your kind reply. It is required due to Immigration RFE to evaluate experience. please advise that how can i deal with this legally incase i did not get any response as my response date is nearing in a month

Expert:  Joseph replied 1 year ago.
I would inform them of the importance of the letter to hopefully get a response. As well as trying to get a response through other channels. You could possibly offer them a template or some suggested language if they're just too lazy to write the letter.

Although the letters are required by the process, it does not appear that there is actually a way to compel previous employers to write them.

Instead if you are unable to get a letter, secondary evidence can be used for RFE. And, if secondary evidence isn't available, there's a way around that as well.

AILA members report receiving requests for evidence (RFE) and denials on I-140 petitions where the verification of required skills and experience letters are written by former supervisors of the beneficiary who are no longer employed by the former employer, if the petitioner does not also provide a letter from the former employer that confirms the supervisor previously worked there and was authorized to write the experience confirmation letter. The RFEs and denials (examples provided to SCOPS in December of 2011) state that: “Letters from former colleagues, co-workers or immediate supervisors without the explicit authorization, endorsement and substantial from current or former employers are not acceptable as evidence of the beneficiary's qualifying experience." This radically departs from decades of prior practice and is not required by the regulations. 8 CFR 204.5(g) provides in relevant part: “Evidence relating to qualifying experience or training shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received. If such evidence is unavailable, other documentation relating to the alien’s experience or training will be considered.” Not only does the regulation not contain the assertion made in the RFEs and the denials but it mandates that if the listed evidence is unavailable other evidence “will” be considered. Do these RFEs and the reported denial reflect the current position of SCOPS and, if so, what is the legal basis for that position?

USCIS Response: We appreciate the cases that you brought to our attention and are working with our service centers to ensure that language utilized in notices issued by USCIS (including Requests for Evidence and Notices of Decision) regarding this issue are as clear as possible. USCIS’s interpretation of 8 CFR 204.5(g)(1) has not changed from prior practice. 8 CFR 204.5(g)(1) requires that:

Evidence relating to qualifying experience or training shall be in the form of letter(s) from [the beneficiary’s] current or former employer or trainer(s) and shall include the name, address, and title of the writer and a specific description of the duties performed by the alien or of the training received.

Pursuant to 8 CFR 204.5(g)(1), a letter from the beneficiary’s current or former employer is considered required (primary) evidence for the purposes of establishing qualifying experience. In cases where such evidence is unavailable, other documentation (secondary evidence) will be considered. Before USCIS may consider secondary evidence, however, 8 CFR 103.2(b)(2) requires the petitioner demonstrate that the primary evidence does not exist or cannot be obtained:

(i) General. The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, … does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence … pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

For example, secondary evidence may be appropriate in situations where the petitioner is unable to obtain the primary evidence because the beneficiary’s former employer no longer exists or is temporarily closed.

Whenever possible, the primary evidence required in 8 CFR 204.5(g)(1) should be submitted. Secondary evidence, such as letters written by former supervisors of the beneficiary who are no longer employed by the former employer, will be considered only if the petitioner can establish that a letter directly from the former employer is not available. The burden of proof in establishing that primary evidence is unavailable rests with the petitioner.

You may be better served if you also ask this question in immigration law, since it is not one of my primary areas of expertise.
Joseph, Lawyer
Satisfied Customers: 4979
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    933
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    849
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    330
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3443
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    24
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.