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  • Bloggings: Yogi Berra's Spirit Lives On In H-1B RFE Land by Roger Algase

    Bloggings on Immigration Law

    by Roger Algase

    Yogi Berra's Spirit Lives On In H-1B RFE Land.

    Recently, I received an RFE (Request For Evidence) in response to an H-1B petition involving a relatively small but well established consumer oriented company which was filing on behalf of an employee to work in a position that has long been recognized by the USCIS as a traditional H-1B specialty occupation. The immigration examiner in this case did not dispute this.

    However, as has been the case with so many H-1B petitions for many years, the USCIS examiner seized on the company's small size in order to argue that this factor alone meant that it did not need an H-1B level employee in that particular specialty, which happens to be one that almost every type of company of every size normally needs, as it is related to the marketing and public relations side of the business.

    Despite the fact that nothing in the H-1B statute or regulations makes the size of a company relevant in determining whether it can have access to using the H-1B system for its employees, an RFE was issued along the lines of the all too familiar mantra: "The nature of your business is not such that it would require a [worker in the specialty occupation].".

    Accordingly, the petitioning employer was asked to provide additional evidence that it really needed an H-1B specialty worker for the particular job in question. Normally, this is a no-win proposition, because once an immigration examiner has made up his or her mind that a company is "too small" to need an H-1B specialty worker (i.e. someone with a four-year bachelor degree or equivalent education and/or work experience related to the specialty), it is normally very difficult to change the examiner's mind.

    However, in this case, it turned out that the same employer had recently tried to hire another specialty worker for almost exactly the same job, only to have its H-1B petition for that employee denied for the same reason, namely that it allegedly did not need to hire a specialty worker because of the company's small size [between 5 and 10 employees].

    The employer in that earlier case had appealed to the AAO (Administrative Appeals Office) and had finally won an approval for the petition. The AAO's decision had stated that despite its relatively small size, the employer had shown that it has a genuine need for the specialty worker involved. The employee was thereupon hired and continued to work in the H-1B occupation involved before eventually moving on to a different employer.

    Now, in effect, that same employer was being asked to fight the same battle over the same issue that it had previously prevailed on with the AAO after a long delay and, no doubt, with great effort and expense. As Yogi Berra famously said, this was "deja vu all over again".

    Fortunately, when the previous AAO decision (which I was not involved in) was brought to my attention, and I was able to bring it to the attention of a [different] examiner, the new petition was finally approved.

    About The Author

    Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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