Travelling outside the United States for H-1B employees in the IT consulting industry when visa stamping is required is a big risk in the current climate. Below is a classic example of what can go wrong during the visa interview. The applicant’s visa was rejected, and he was unable to return to his job in the United States. This is an excerpt from the consular officer’s report providing the reasons for rejecting the visa:
1. Does Petitioner supervise Beneficiary and is such supervision off-site or on-site?
Beneficiary states Petitioner supervision is very limited and offsite. The Petitioner operates out of a small office suite on _______ in xxxxx, TX.
2. If the supervision is off-site, how does Petitioner maintain such supervision?
Beneficiary stated Petitioner contact is limited to only pay checks and occasional visits.
3. Does Petitioner have the right to control the work of Beneficiary on a day-to-day basis if such control is required?
Beneficiary stated that Beneficiary’s daily and even longer term activities are controlled by end-client.
4. Does Petitioner provide the tools or instrumentalities needed for Beneficiary to perform the duties of employment?
Beneficiary stated that all tool and the development environment related to the work are provided by end-client.
6. Does Petitioner evaluate the work-product of Beneficiary?
Beneficiary stated that the evaluation of Beneficiary’s work is done by end-client. Beneficiary stated End-client makes the primary evaluations and shares information with Petitioner.
9. Does Beneficiary use proprietary information of Petitioner in order to perform the duties of employment?
Beneficiary stated that no proprietary tools used by Beneficiary at the work site are provided by Petitioner. Beneficiary stated The Petitioner produces no proprietary tools. All software used by the beneficiary is under license to xxxxxxx.
10. Does Beneficiary produce an end-product that is directly linked to Petitioner’s line of business?
Beneficiary does not produce any product related to Petitioner’s line of business.
11. Does Petitioner have the ability to control the manner and means in which the work product of Beneficiary is accomplished?
Beneficiary stated that the manner and means in which the work product of Beneficiary is accomplished is controlled by end-client.
Officer’s conclusion: In contradiction to the statements made by Beneficiary (above) at interview with a consular officer, the USCIS petition (form I-129 Supplement H), submitted by Petitioner, stated that Petitioner maintains a valid and continual employer-employee relationship with Beneficiary (‘... I certify that I will maintain a valid employer-employee relationship with the beneficiary at all times...’). These significant discrepancies constitute information not available to USCIS at the time of petition approval. Consular officers at this post have determined that Beneficiary is not eligible for the petitioned visa category because Petitioner is unable or unwilling to provide employment under the terms presented to USCIS. Consular officers have developed information, including statements made during the interview, before a consular officer, certified truthful under penalty of perjury by Beneficiary per the DS-160 visa application form, and evidence submitted by Beneficiary, including the visa application forms and other documents, as well as other evidence.
The statements above clearly establish the need for H-1B employees to understand the huge risk they are taking when travelling outside the United States. It is imperative that the employee contact their immigration attorney before making any travel plans and heed the attorney’s advice. Employees should be armed with strong documentation and a clear understanding of the employer-employee relationship. If the above statements actually represent an employee’s work situation, then the H-1B requirements are not being met and any H-1B should be withdrawn.
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Our experienced team of immigration lawyers in Houston & Dallas advises clients throughout the H-1B visa application process, including responding to various requests for evidence and consular processing issues. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.