January 12, 2022

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The frequency of unannounced H-1B third-party worksite visits from Fraud Detection and National Security (FDNS) is rising. The United States Citizenship and Immigration Services (USCIS) sends adjudicated petitions to FDNS for random selection for worksite visits.

When FDNS conducts unannounced site inspections, they may review the Labor Conditions Application (LCA). Then, speak with petitioning company officials, employees, and third-party clients about the details. All parties must know the content of the LCA, and it must accurately reflect the position.

Recently, USCIS sent 40,000 H-1B cases to FDNS. FDNS has about 650 immigration officers, research specialists, and analysts. They also contract with private investigation firms to conduct site visits.

These are the principles of writing a successful employment letter to win H-1B visas for third-party worksites.

There are two essential components to writing an effective H-1B employment letter for employees at third-party worksites.

  1. Proving the specialty occupation
  2. Defining the employer-employee relationship

1. Proving H-1B Specialty Occupation

When proving specialty occupation, there are three aspects to consider:

  • Educational requirements
  • Job duties 
  • Job tasks

First, you need to know whether the job requires a university degree and if the employee meets the educational requirements.

Determine H-1B Educational Requirements

Go to the Department of Labor's (DoL) Occupational Outlook Handbook (OOH), and find the job most similar. Next, click on the "how to become one" tab. 

See whether the requirement for a university degree is specified—state whether the beneficiary has the same degree or a similar one. Then assess whether the position's duties are complex enough to require a bachelor's degree or higher. 

H-1B Job Duties and Tasks

Next, on the OOH website, three tabs are associated with each position: a summary, the tasks, and the educational component. 

The task-based summary tab will lay out the standard version of the job and its typical tasks. The worst thing to do is copy the OOH description and use it as the job description. USCIS will compare what you write to the OOH and decide the job isn't real because a real job. 

The key is to use the OOH description as a guide to help you organize the job duties.

For tasks, begin by organizing the job duties into categories and put the percentage of time that the employee will spend in each. Next, describe the specific tasks in each category. 

You can talk about a particular project and use examples such as the type of computer language they'll be using. If you mention the technical aspects like computer language, don't use abbreviations; use layman's terms

Go into as much detail as possible. You don't need to limit the task description to one particular area.

Prove Body of Highly Specialized Knowledge

Finally, connect the beneficiary's degree to the job requirements—detail how the specified job relates to the employee's degree. If your employee has the listed degree, say that. If they have a similar degree, demonstrate how their educational background led them to specialized knowledge.

2. Defining the Employer-Employee Relationship

According to ITServe Alliance, Inc. v. Cissna, the negotiated memo waived the contracts and itineraries requirements. H-1B petitioners do not need to include third-party contracts, schedules, or letters in H-1B petitions. However, as part of the H-1B approval strategy, it is critical to analyze the employer-employee relationship and provide supporting documentation.

USCIS evaluates the employer-employee relationship by weighing multiple factors. They look at who directly supervises the H-1B worker and whether there is on-site or off-site supervision. If the work is at a third-party site, then the method and frequency of management are analyzed. In some cases, USCIS uses proprietary information to check the direct link between the end work product and the employer's business.

The use of project management software by all constituents indicating oversight and services can help combat intrusive USCIS investigation. Furthermore, submitting an itinerary that all parties sign and including documentation with specific job duties can help increase success.

About the author 

Teal Benson

About the author: Jon Velie has practiced immigration law since 1993. He is CEO of OnlineVisas.com., the Intelligent Immigration Platform. Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval that is regularly covered by major media and has won a number of international awards. Jon can be contacted at jon@onlinevisas.com or 405-310-4333 office or 405-821-5959 mobile.

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