CASE: H-1B Change of Employer / Re-capture and reclaim issues
PETITIONER: Software Development and IT Staffing Company
BENEFICIARY: Indian Computer Systems Analyst
LOCATION: Jacksonville, FL
Our client is a fast growing software developing and IT consulting company located in Jacksonville, FL. They contacted our office in August 2014 to seek assistance from our office for their foreign employee. The beneficiary is from India and he obtained his Bachelor’s Degree in Information Systems. The proffered position for the Beneficiary is a Computer Systems Analyst which we argued qualifies as a specialty occupation
The foreign beneficiary in this case already had his H-1B from his previous employer which was in a similar industry. However, he changed his status from H-1B to H-4 after his employment was terminated with his previous employer. Nevertheless, his previous H-1B was valid until September 2016 so our office argued that his unused H-1B time can be recaptured and his H-1B petition can be filed under a change of employer basis which means no cap limitation.
After retention, our office promptly filed the H-1B visa petition with various supporting documents on August 27, 2014 via regular processing. However, the USCIS mailed a Request for Evidence to the Petitioner-Employer and requested Petitioner to submit additional evidence to establish that the proffered position to the beneficiary qualified as a “Specialty Occupation” on October 24, 2014, plus additional questions about the “in-house” nature of the employment.
We gathered supporting documents from both the Petitioner and Beneficiary and did research on the industry, focusing on similarly sized businesses, to demonstrate that a bachelor’s degree is commonly required for this position. We also provided in-house employment proof.
In the response brief, our office argued that the degree requirement is common to this industry in parallel positions among similar organizations. We provided evidence that the position of Systems Analyst or Computer Systems Analyst is a common position required by similarly sized IT consulting companies. Also, we provided evidence that Petitioner’s competitors normally require degrees in a specific specialty for closely related positions like that of Systems Analyst. Moreover, our office asserted that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree in a specific specialty. Other documents pertaining to an in-house project was also submitted.
Our office filed a detailed Response to RFE brief with many exhibits to the USCIS Vermont Service Center on January 13, 2015. Eventually, our client’s H-1B application was approved on February 11, 2015.