By: Justin Kennedy
Recent data has shown that one of the most hard-hit industries under Trump’s immigration-phobic administration is the IT Consulting Industry. In the RFEs USCIS has been issuing companies placing their employees at third-party client sites, it is very common to see the following statement:
“As recognized by the court in Defensor v. Meissner, 201 F.3d 384, 387-88 (5th Cir. 2000), where the work is to be performed for an entity other than the petitioner, evidence of the end-client’s job requirements is critical. You must submit evidence that the proffered position qualifies as a specialty occupation on the basis of the requirements imposed by the entity(ies) using the beneficiary’s services.”
USCIS is very loosely interpreting a legal decision that actually does not have as much relevance as they are saying, considering the background of a lot of H-1B cases that IT consulting firms file.
In Defensor v. Meissner, the Plaintiff in question happened to be a staffing agency that placed nurses at hospitals. Several petitions that they filed were denied by USCIS for lack of sufficient documentation to demonstrate that the positions qualified as H-1B Specialty Occupations. The Plaintiff, Vintage Health Resources, represented by Febe Rose Belle E. Defensor, appealed the case with the argument that they routinely hire nurses with Bachelor’s Degrees and that because of this, they satisfied Criterion 3 of 8 CFR § 214.2(h)(4)(iii)(A).
The Appellate Court reviewing the case upheld the denial from USCIS with the reasoning that because the hospital where the nurses would be placed was ultimately the entity supervising the nurses and no evidence was presented that showed that they required Bachelor’s Degrees of the nurses working at their facility, that the totality of the evidence presented was not sufficient enough to qualify for H-1B.
USCIS has taken this particular case and the reasoning stated above and run with it, citing it as the ultimate reason why they need insurmountable evidence proving that a client requires a Bachelor’s Degree in a specialized field. However, there are a couple VERY important aspects in the Appellate Court’s reasoning on Defensor v. Meissner that USCIS conveniently overlooks when using the case to question IT consulting companies:
- The positions in question in Defensor v. Meissner were for nursing positions. According to the Occupational Outlook Handbook (USCIS’ go-to reference guide), many nursing positions don’t normally require a Bachelor’s Degree. In contrast with the kinds of positions IT consulting firms are filing for (Software Engineers, Systems Analysts), these positions normally do require Bachelor’s Degrees according to the industry. Already, the burden of proof on a company to prove that a position requires a Bachelor’s Degree is not as high as it was on the Petitioner in Defensor.
- In Defensor, the nurses were not going to be supervised by any personnel from the staffing agency that hired them. In many cases involving placement of consultants by an IT Consulting Firm, an entire project team might be placed onsite, including a project manager from the company that will supervise the rest of the consultants throughout the duration of the project.
Many Specialty Occupation RFEs involving third-party placement can be overcome if the above points can be established, however all RFEs are circumstantial, and it’s always best to consult with an experienced immigration attorney when determining how to handle any RFE. In case you are experiencing difficulties with getting approvals for your employees and you are an IT consulting firm, or any entity employing personnel on H-1B, please contact firstname.lastname@example.org to schedule a consultation!