02 Jan Successful Response to H-1B RFE re: 6 Year Maximum and Place of Employment
Getson & Schatz P.C was able to successfully obtain an H-1B approval, despite a Request for additional evidence from the USCIS, for a petitioning employer who filed Form I-129 on behalf a Chinese beneficiary. Getson & Schatz was able to submit evidence showing that the issues raised by USCIS in the Request for Evidence were legally erroneous.
USCIS sent the petitioner a Request for Evidence in response to From I-129 Petition for a Nonimmigrant Worker. The RFE stated that the petition requested an extension of the beneficiary’s stay beyond the usual time limits and requested that the petitioner provide evidence that the beneficiary qualified for exemption from this time limit. USCIS regulations provide that a beneficiary is exempt from the usual 6 year time limit if he or she does not reside continually in the U.S. or his or her employment in the U.S. is seasonal, intermittent or an aggregate of six months of less per year, or if he or she resides abroad and regularly commutes to the U.S. to engage in part-time employment. Our Philadelphia attorneys submitted a letter from the petitioning employer showing that the employer was in fact requesting an extension of the beneficiary’s H-1B status for a period less than 6 years from the date the beneficiary first held H-1B status in the U.S., therefore showing that the RFE was incorrect in stating that the petitioner had requested an extension of the beneficiary’s stay beyond the usual 6 year time limit. Based on this information, evidence that the beneficiary was exempt from the usual time limit was not legally required and was shown to be inapplicable to the pending I-129 petition.
Furthermore, according to Title 8 Code of Federal Regulations part 214.2(h)(4)(i)(B)(1), before filing a petition for H-1B classification the petitioner must obtain a certification from the Department of Labor (DOL) that they have a filed a Labor Condition Application (LCA) om the occupational specialty in which the beneficiary will be employed. The RFE from USCIS requested that the petitioner submit an approved LCA listing all areas of the beneficiary’s intended employment to include their company headquarters. In the letter from the petitioner submitted by our attorneys, we were able to show that DOL regulations required submission for each “place of employment” of an H-1B employee. Since the beneficiary would only be travelling to the company headquarters on a casual short term basis it did not qualify as a “place of employment” as defined in 20 C.F.R 655.730, therefore showing that a certified LCA was not legally required for the pending I-129 petition.