IMPORTANT H-1B FILING GUIDELINES

May, 2006

The Law Offices of Chat Gurtu PC is a full service law firm dedicated to providing the highest quality legal counsel. Although quite diversified, the firm’s practice is primarily devoted to business and commercial matters, with emphasis in the representation of local, national and international investors and businesses; international trade and customs law, including tax haven activities; international licensing, technology transfer agreements and joint ventures; immigration and consular matters, including business and investor visas; international, federal and state taxation, including appearances before the U.S. Tax Court; general commercial and civil litigation, including appellate practice; real estate; and, bankruptcy.

In addition to providing technical representation to our clients, we are available to assist them in locating attractive investment opportunities in the U.S. and abroad, and in evaluating the business and economic aspects of the various investments and transactions.

Note: This Memorandum is designed to alert clients to general developments in law in the United States of America and to planning opportunities. Such developments and opportunities are necessarily discussed in general terms, and therefore, should not be acted upon without professional advise.

This year USCIS seems to have become more strict in reviewing H-1B petitions. Thus, in order to avoid a delay in processing and a possible Request For Evidence (RFE), the following requirements should be attended to at the time of filing:

8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide in advance an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her non-immigrant status. In situations in which an H-1B worker is changing to an employer other than the one for which the initial H-1 B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations in which the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.

In the case of small companies, the service is requesting additional documentation such as company’s corporate tax returns and payroll taxes, to ascertain its size. The employer petitioner should be ready to demonstrate expansion plans, adequate financing, and the use of the specialty occupation worker in its overall strategic plans for growth.