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Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28297
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I got an RFE H1- renewal. I would need your advice how to

Customer Question

Hi, I am Sharath, I got an RFE for my H1-B renewal. I would need your advice how to proceed further before my attorney responds to the RFE. I need to respond on or before Dec 5 2015
My current H1-B ends on Dec 31 2015.
In the RFE, I got quite a few questions, but below are the ones which are kinda complicated
These are the questions in RFE, which needs to be addressed.
Question 1. In the petition, we have requested a validity period from dec 31 2015 to dec 31 2018, but the SOW
what we shared to USCIS states that current SOW ends on dec 31 2015.
There is no evidence to demonstrate that this SOW has been extended and that specialty occupation work will be available for the beneficiary throughout the requested validity period.
Question 2 Subcontratcors: In the event that supplier hires third party company or individual to complete all or part of the services described in SOW, pursuant to the agreement, supplier must obtain end client prior written approval. By completing the chart below, end-client and supplier (vendor) acknowledge and agrees to the following:
The SOW does not list your organization as a company with prior written approval from the end client nor was there any documentation submitted to show that vendor has subsequently obtained approval to subcontract your organization. As such, it cannot be determined that your organization has been approved to provide services to the end client or that the end client understands that you will retain ultimate control of the beneficiary.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith replied 1 year ago.

OK, I understand the RFE questions. They are standard boilerplate questions in RFEs where end-client is involved.

I am not sure what your question is about responding.

Can you be more clear on what you mean by "how t proceed further before my attorney responds"?

Generally attorneys who do H1B petitions are familiar with these issues.

Judith

Customer: replied 1 year ago.
Thanks for your reply Judith.
According to my attorney, he didn't deal with this kind of RFE before, so this issue is kinda new to him. I want to make sure he is doing it right and we are in the right path.
Firstly, I would like to get clarification for question #2 as mentioned in previous thread.
A paragraph in my SOW between vendor and end client states below, I got RFE based on the below statement"Subcontratcors: In the event that supplier hires third party company or individual to complete all or part of the services described in SOW, pursuant to the agreement, supplier must obtain end client prior written approval. By completing the chart below, end-client and supplier (vendor) acknowledge and agrees to the following: The SOW does not list your organization as a company with prior written approval from the end client nor was there any documentation submitted to show that vendor has subsequently obtained approval to subcontract your organization. As such, it cannot be determined that your organization has been approved to provide services to the end client or that the end client understands that you will retain ultimate control of the beneficiary."Below is the response prepared for the above “subcontractors” clause.
We received September month minority report (Minority Business Enterprises) from my vendor, which shows my employer name in that list.
The monthly minority report (Minority Business Enterprises) which goes to end-client every month in support of SOW, it provides subcontractor list for them. This way client is made aware (or client is having the knowledge) of subcontracting companies/individual to complete all or part of the services described in this SOW, pursuant to the agreement.Also there is another paragraph in the same SOW which explains about this monthly minority document and it also mentions about subcontractors clause"Exhibit A – A one page document entitled “Quarterly Diverse Supplier Spend Report”, which is used for Diverse Subcontractor reporting purposes. It is used by supplier to report send data against MBE (Minority Business Enterprises) or WBE (Women Business Enterprises) on a monthly basis. MBE’s are defined as a business that as at least 51% ownership by one any one of the following cultural groups : African American, Hispanic American, Native American, Asian Pacific and Asian-Indian American. WBEs are defined as a business that has at least 51% ownership by female."Though above paragraph explains about subcontractors clause, what made them to raise this RFE?
That’s my understanding correct me if I am wrong.thanks,
Sharath
Expert:  Judith replied 1 year ago.

You need to retain an attorney with experience in H1B "Third Party Worksites - End clients". This is nothing new in the H1B petition world and your lawyer should not have taken on a case for which they were not qualified.

Your Exhibit A raised more questions that providing answers!!!!!! It did not satisfy the primary issues USCIS has with Third Party Worksites and USCIS is not interested in the workplace diversity when adjudicating a petition.

There are always two main issues with Third Party Worksites - End clients:

1. Will there be work available for you through the period for which the employer has requested a petition approval - in your case 12/31/2015 - 12/31/2018.

USCIS says "SHOW ME THE PROOF - A CONTRACT; WORK ORDER; LETTER OF AGREEMENT". We want assurance you will not be put on the bench and not work.

2. Who is going to control and direct the work you will be performing at the Third Party Work site? It must be your petitioner/employer who directs you even though you will be off site. Your petitioner has to have the employer/employee relationship with you.

Since your petitioner-employer has no agreement with the Third Party work site Your employer petitioner must enter into a contract with the Third Party defining the length of the project (and amend the requested approval dates to coordinate with these dated) scope of your duties; the skills required; and that the petitioning employer alone is responsible for directing your work product and how that direction and control will be done.

That is the basis of proving that a valid employer/employee relationship will exist between you and the company that filed the petition.

If the SOW does not provide for authorization for your petitioner to use their employees on the end-client site it can be demonstrated in a contract; work order or service agreement. Those documents must stipulate in addition to wage, hours to be worked, required skills, job duties, how you will be managed and supervised by the employer petitioner on the client site. Whether the employer will have a manager on site supervising your work; name and phone number of the manager; examples of weekly reports between you and your manager with examples of time sheets which will be attached to the reports giving detailed description of duties performed and time spent on each task.

You can also provide an Affidavit - see sample

http://h1bsupport.com/entry/h1b-client-letter-affidavit-sample-letter#sthash.Q7YNhASq.dpuf

I cannot teach your lawyer how to document the petition for your contractor/employer. I have shown you where the holes are and how they can be plugged, but you really need a lawyer who knows what they are doing in these tricky petition situations.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Understand, it is my job to be honest and truthful about the law and sometimes the law does not give you the solution or options you want. Kindly give me a positive rating when you are done. If you feel I earned a BONUS, I am grateful. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
hey Judith, thanks for your response.
Referring to two issues in the previous thread
Issue 1: My current SOW ends on 12/31/2015, gets renewed in the 3rd week of the December, but I need to respond to this RFE by Dec 5. This is the usual practice between the vendor and client and this happening past 3 years and we are including the past SOW's as exhibits in the response packet for their reference.this is what my attorney included in the RFE response about this issuePlease note that within the IT consulting industry, purchase order/work order is generally executed for short term periods of 6 to 12 months with the possibility of further
Extensions. Likewise, ABC LLC(my employer) anticipates that XYZ Inc(vendor) and PQR(end-client) will further extend the purchase order before the expiry of the current purchase order so that the beneficiary can continue to perform job duties at their facility until the entire intended period of 3 years. This expectation is based on the fact that our previous practice of extending the contracts. In view of the above, please approve the H-1B for the full period requested.Additionally, we are confident that our company will have sufficient projects which will
be assigned to the beneficiary to work-on under our employment during the intended
Employment validity dates of his entire H-1B period and we, if needed, will place him on other projects so that Mr. Sharath will be assigned to provide continual specialized consulting services. Thus, as stated, the specialty occupation work will be continuous for Mr. Sharath during his entire H-1B period.Issue2 : my attorney covered me on all the points what you mentioned in issue2 (right to control etc).
For subcontractor clause, this is the response what my attorney prepared
Notification of subcontractorRespected Officer,We understand that the subcontractor has to be notified to end-client. Modifying the SOW after execution is a tedious task. Considering the operational bottleneck ABC Solutions Inc(vendor) always send the Minority report on the Monthly basis to end-client in support of SOW, it provides subcontractor list to end-client, which has XYZ LLC (my employer name)in that list. This way client is made aware (or client is having the knowledge) of subcontracting companies/individual to complete all or part of the services.We here by provide the following supporting documents for your reference• Minority Report
• XYZ LLC(my employer) Minority Certificate
• end-client Email from the Lead.Based on your experience and cases you have seen in the past. Does my response look convincing? or do I need to provide anything more?thanks,
Sharath
Expert:  Judith replied 1 year ago.

I am not understanding the above. Everything is running together. I don't know if you are quoting some of the above from the response to the RFE or if you are telling me something or what.

It is all jumbled together and I cannot understand what ends and what begins and what is what.

Judith

Customer: replied 1 year ago.
hey Judith, I am referring to your response on Oct 312015Issue 1: “Will there be work available for me through the period for which my employer has requested a petition approval - in my case 12/31/2015 - 12/31/2018.”My current SOW ends on 12/31/2015, gets renewed in the 3rd week of the December, but I need to respond to this RFE by Dec 5. This is the usual practice between the vendor and client and this happening past 3 years and we are including the past SOW's as exhibits in the response packet for their reference.This is the response prepared by attorney“Please note that within the IT consulting industry, purchase order/work order is generally executed for short term periods of 6 to 12 months with the possibility of further
Extensions. Likewise, ABC LLC(my employer) anticipates that XYZ Inc(vendor) and PQR(end-client) will further extend the purchase order before the expiry of the current purchase order so that the beneficiary can continue to perform job duties at their facility until the entire intended period of 3 years. This expectation is based on the fact that our previous practice of extending the contracts. In view of the above, please approve the H-1B for the full period requested.Additionally, we are confident that our company will have sufficient projects which will
be assigned to the beneficiary to work-on under our employment during the intended
Employment validity dates of his entire H-1B period and we, if needed, will place him on other projects so that Mr. Sharath will be assigned to provide continual specialized consulting services. Thus, as stated, the specialty occupation work will be continuous for Mr. Sharath during his entire H-1B period. “=====================================================================================
Issue2 :
Subcontratcors: In the event that supplier hires third party company or individual to complete all or part of the services described in SOW, pursuant to the agreement, supplier must obtain end client prior written approval. By completing the chart below, end-client and supplier (vendor) acknowledge and agrees to the following: The SOW does not list your organization as a company with prior written approval from the end client nor was there any documentation submitted to show that vendor has subsequently obtained approval to subcontract your organization. As such, it cannot be determined that your organization has been approved to provide services to the end client or that the end client understands that you will retain ultimate control of the beneficiary.My attorney covered me on all the points what you mentioned in issue2 (right to control etc).For subcontractor clause, this is the response what my attorney prepared“Notification of subcontractorRespected Officer,We understand that the subcontractor has to be notified to end-client. Modifying the SOW after execution is a tedious task. Considering the operational bottleneck ABC Solutions Inc(vendor) always send the Minority report on the Monthly basis to end-client in support of SOW, it provides subcontractor list to end-client, which has XYZ LLC (my employer name)in that list. This way client is made aware (or client is having the knowledge) of subcontracting companies/individual to complete all or part of the services.We here by provide the following supporting documents for your reference• Minority Report
• XYZ LLC(my employer) Minority Certificate
• end-client Email from the Lead.”Based on your experience and cases you have seen in the past. Does my response look convincing? or do I need to provide anything more?thanks,
Sharath
Expert:  Judith replied 1 year ago.

Issue 1:

I still don't see any hard evidence of there being work for you for the 3 years through 2018. This is not giving USCIS anything they asked for but a promise.

True the historical reference to past contracts is supportive, but not binding.

Also with reference to XYZ not putting you on the bench they need to provide copies of contracts for which you would hold the specialized knowledge to perform the duties in the contracts. All they say is " will place him on other projects " What projects? Where is the evidence of such projects?

Issue 2:

Where is end client letter?

In lieu of such where is evidence of XYZ being the one to manage and control your work product?

Those documents must stipulate in addition to wage, hours to be worked, required skills, job duties, how you will be managed and supervised by the employer petitioner on the client site. Whether the employer will have a manager on site supervising your work; name and phone number of the manager; examples of weekly reports between you and your manager with examples of time sheets which will be attached to the reports giving detailed description of duties performed and time spent on each task.

I don't see any reference to this issue USCIS raised.

Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars. I have put a lot of time into these answers for you and you need to rate my answer since this is how I earn my living.
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Expert:  Judith replied 1 year ago.

I see you have responded to my last answer but it is not showing here in this thread. May I ask what needs further clarification? I have tried to be very clear and responsive with very specific answers.

Just like your time my time does have value and your rating is the only way I receive compensation.

Judith

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