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Can I stay after a H1B amendment denial with a valid I-94?

This is one of the most common questions raised by H1B employees recently due to increased H1B denial. Depending on your situation the answer is Yes and No. We will briefly go over different scenarios.

H1B Denial in Amendment due to Role Change

If the amendment was due to a role change, it is likely you will be able to continue with a previously approved petition and valid i-94. This situation is quite possible when someone gets promoted to a management role and filed an Amendment with a new role.

You are eligible to stay in US and perform the original role which was approved. But to stay on the good side of law, you will have to perform the original role and not a management role. If your project doesn’t accommodate this, you might be out of luck.

This role doesn’t affect your promotion, as a Job title doesn’t necessarily need to match your SOC title or Job responsibilities.

H1B Denial in Amendment due to Location Change

If your employer filed an amendment petition due to a location change, there are chances you will be able to use your old petition and valid I-94. But to use your old petition, you will have to move back to your old LCA location (based on which H1B was approved and have a valid I-94).

By old LCA location, we mean the exact address not just the city. Moving back to old city working from remote will not suffice  and will be in violation of H1B terms.

This condition is very much possible due if you have moved to a different location with same employer and client. Most likely you might be allowed to move back.

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Cognizant facing higher Visa Denials for Computer System Analyst roles

Cognizant Technologies is number three in terms of employees in India. Even though it is based out of USA, for all purposes is considered an Indian IT firm. For years Cognizant has filed several H1B petitions for System Analysts ( 15-1121.00 – Computer Systems Analysts ), but in recent months have seen an extremely high spike in denials.

Cognizant has relied Fragomen for majority of its filings in the recent years. There was always a gripe among employees on the Fragomen methodology of filing H1B petitions with minimal documentation and adding additional documentation during RFE. This process was resulting in increased RFE’s and lead to USCIS issuing a memo on documentation to be filed with initial filing.

While this was causing several RFE’s and denials, USCIS has also started targeting Computer System Analyst role for Specialty Occupation eligibility. USCIS through 2017 memo has deemed Computer Programmers are not a Specialty Occupation in itself and further evidence is needed to justify the role. With Fragomen’s policy of not providing support documents, it increased frustration within USCIS and employees, causing more RFE’s and denials.

How is H1B Salary determined

 

Even with support documents employees filing with wage level 1 have very slim chance of approval. This SOC title of Computer System Analyst also is used for several roles within Cognizant. Senior Analysts, System Analysts and even for managers. Below are some of the Job titles associated with this SOC title.

Applications Analyst,
Business Analyst,
Business Systems Analyst,
Computer Analyst,
Computer Systems Analyst,
Computer Systems Consultant,
Information Systems Analyst (ISA),
Information Technology Analyst (IT Analyst),
System Analyst and
Systems Analyst.

If you have been offered the SOC title in LCA, discuss with your Manager and Immigration team, about choosing alternate roles. If they persist with this role, you need to be prepared for RFE or denial.

While the chances of Non – Computer Science background degree holders have higher chance of denial, denials are happening with Computer Science Background employees as well.

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Computer Programmer H1B role and Probability of H1B approval in 2018

With USCIS clarifying with a 2017 memo, that Computer Programmer (SOC Code – 15-1131.00 )  roles do not automatically qualify for Specialty occupation, the rate of denials have shot up exponentially.

Here is the probability of approval by various metrics provided by Immigration attorneys polled across 3 major India based employers.

Computer Programmer 15-1131.00  (SOC Title) and any Job Title like Analyst Programmer, Applications Developer, Computer Programmer, Computer Programmer Analyst, Internet Programmer, Java Developer, Programmer, Programmer Analyst, Software Developer, Web Programmer, all have similar probability of approval based on the wage level.

Job Title Wage Level Probability of
Denial		 Probability
of RFE
Computer Programmer Computer Programmer 1 >50% 80%
Computer Programmer Analyst Programmer 1 >50% 80%
Computer Programmer Applications Developer 1 >50% 80%
Computer Programmer Computer Programmer Analyst 1 >50% 80%
Computer Programmer Internet Programmer 1 >50% 80%
Computer Programmer Java Developer 1 >50% 80%
Computer Programmer Programmer 1 >50% 80%
Computer Programmer Programmer Analyst 1 >50% 80%
Computer Programmer Software Developer 1 >50% 80%
Computer Programmer Web Programmer 1 >50% 80%
SOC Title Job Title Wage Level Probability of
Denial		 Probability
of RFE
Computer Programmer Computer Programmer 2 >40% 80%
Computer Programmer Analyst Programmer 2 >40% 80%
Computer Programmer Applications Developer 2 >40% 80%
Computer Programmer Computer Programmer Analyst 2 >40% 80%
Computer Programmer Internet Programmer 2 >40% 80%
Computer Programmer Java Developer 2 >40% 80%
Computer Programmer Programmer 2 >40% 80%
Computer Programmer Programmer Analyst 2 >40% 80%
Computer Programmer Software Developer 2 >40% 80%
Computer Programmer Web Programmer 2 >40% 80%
SOC Title Job Title Wage Level Probability of
Denial		 Probability
of RFE
Computer Programmer Computer Programmer 3 >40% 70%
Computer Programmer Analyst Programmer 3 >40% 70%
Computer Programmer Applications Developer 3 >40% 70%
Computer Programmer Computer Programmer Analyst 3 >40% 70%
Computer Programmer Internet Programmer 3 >40% 70%
Computer Programmer Java Developer 3 >40% 70%
Computer Programmer Programmer 3 >40% 70%
Computer Programmer Programmer Analyst 3 >40% 70%
Computer Programmer Software Developer 3 >40% 70%
Computer Programmer Web Programmer 3 >40% 70%
SOC Title Job Title Wage Level Probability of
 Denial		 Probability
 of RFE
Computer Programmer Computer Programmer 4 20% 50%
Computer Programmer Analyst Programmer 4 20% 50%
Computer Programmer Applications Developer 4 20% 50%
Computer Programmer Computer Programmer Analyst 4 20% 50%
Computer Programmer Internet Programmer 4 20% 50%
Computer Programmer Java Developer 4 20% 50%
Computer Programmer Programmer 4 20% 50%
Computer Programmer Programmer Analyst 4 20% 50%
Computer Programmer Software Developer 4 20% 50%
Computer Programmer Web Programmer 4 20% 50%

Additionally the probability drops for non IT and Computer Science degrees, the denial rate has increased rapidly in the last 6 months and this denial probability will increase as more Regular Processing case results are known.

Most of the immigration teams are scrambling to find alternate roles, while trying to keep the resource costs lower.

In addition to the above roles mentioned by Onet, several Indian companies are using roles like Project Manager, Program Manager and other Management roles and using SOC code of Computer Programmer. The probability of denial for the Management roles have increased dramatically in recent months.

With very rate of denials for wage level, it is strongly recommended to file under a different SOC code for employees qualifying for wage level 1.