INS on Supporting Documentation for H-1B Petitions
Director, Service Center Operations
Director, Administrative Appeals Office
From: Louis Crocetti Jr., Associate Commissioner, INS Office of Examinations
Date: November 13, 1999
This office has received a number of letters from the public and from Immigration practitioners regarding the volume of H-1B cases which the Centers are transferring out for additional information. Based on these letters it appears that the Centers are returning an extremely high percentage of H-1B cases for specific occupations.
As indicated in our memorandum of June 6, this office fully supports any and all efforts by Center officers to combat fraud in the H-1B nonimmigrant classification. However, officers involved in the adjudication of petitions for H-1B nonimmigrant aliens should keep the following points in mind.
EMPLOYMENT CONTRACTS
Officers are again reminded that every case relating to a specific occupation should be returned to the petitioner for additional information unless it is for a specific time period, with a particular objective in mind. In such “blitz” projects, advanced notice of Headquarters and, if practical, affected organizations such as AILA should be advised. It appears that a large number of cases are being returned to employment contractors for the submission of contracts between the employer and the alien work site. The submission of such contracts should not be a normal requirement for the approval of an H-1B petition filed by an employment contractor. Requests for contracts should be made only in those cases where the officer can articulate a specific need for such documentation. The mere fact that a petitioner is an employment contractor is not a reason to request such contracts.
ABILITY TO PAY THE STATED WAGE
It also appears that a large volume of cases are being returned to the petitioner for evidence of the financial viability. Unlike the requirements for filing an I-140 petition, the I-129 for an H-1B does not require evidence of the ability to pay the stated wage. Wage determinations and enforcement of their payment with respect to the H-1B classification are the sole responsibility of the Department of Labor (DOL).
CREDENITALS EVALUATION
This office has also received a number of letters relating to cases which were returned to the petitioner with questions concerning the validity of a credentials evaluation performed by a credentials evaluation service. Credentials evaluations submitted with an H-1B petition by a reputable credentials evaluation service should be accepted without question unless containing obvious errors. The ability of the credentials evaluator to perform the evaluation should not be challenged if the evaluation was performed by a professional credentials evaluation service. If the bona fides of a particular credentials evaluator are questioned, HQADN should be contacted for appropriate action.
Service officers are reminded that the public is the Service’s external customer. The Service’s requests for additional information, if necessary, must be based on articulate facts. Service officers are reminded to use discretion in the adjudication of H-1B petitions. Failure to do so could result in needless, expensive litigation.
Louis D. Crocetti, Jr.
Associate Commissioner
27MM6C04