SOW requests for past projects make it difficult for H-1B holders to establish employer-employee relationship.
In the Fall of 2019, Mahesh K, who has been working in the US for more than five years, received an RFE (Request for Evidence) on his H-1B application.
While the RFE itself was a bit of a surprise for him as he had Masters from reputed US universities and had been consistently employed in an IT conglomerate, what was more puzzling was that he was asked for a Project ‘Statement of Work’ (SOW).
Mahesh shares, “I was preparing for an important client presentation which I had to lead, and out of the blue I was now required to submit the SOW for not one, but three most recent projects I had worked on and was assigned in the US for.
‘Not only this, I was also required to submit the contract between employer and client too,” he adds.
Since this was too puzzling for Mahesh to tackle in between his work commitments, he had to seek help of an attorney to navigate his RFE process.
Mahesh is among a growing tribe of young men and women who have been handed out RFEs on applying for an extension of their existing work visas.
Statement of Work, or establishing employer-employee relationship has often been seen as a tough task to prove because many times things are out of direct control for the employee.
For instance, while it was easier for Mahesh to get the current SOW of the project he was working on, going back to his previous two projects required a lot of time, energy and confusion for everyone involved.
What is a Statement of Work (SOW)?
As immigration and work based visas continue to get more difficult to obtain, it is best for employees to be aware of immigration jargon.
Statement of Work, is a document that is often used in project management roles.
It is basically a detailed description of the project, the deliverables, the time lines and the activities one is required to do in order to provide services to the client.
An SOW must specifically detail the purpose of the project one is working on, its scope, location, timeline and expected deliverables.
It should also mention places where people will be required to be during continuation of the project and any special requirements as well as the payment and contract details.
Needless to say, the document is a very comprehensive and detailed description of the current as well as the past work of an H-1B visa holder.
Why SOW poses a problem?
Netra Chavan, who manages the largest H-1B and H-4 (dependent visa) community social media group, says visa holders and those in green card backlog often come to seek advice about SOW.
It sometimes interrupts with their ongoing work as it involves a lot of paper work and going back and forth.
“Decades old US residents on H-1B visa cannot leave current employer at times either because their Green card is pending and/or they feel well settled working for one client for many years,” says Chavan.
“The client also very often wishes to retain such employees who are very productive and have complete know-how of their product or services.”
“But recently these employees have to face first hurdle during change of employer, filing amendments, filing H-1B extensions, responding to RFE’s etc… leading to documentation to prove employer-employee relationship,” she says.
“These H1B employees have to reach various signing authorities/management teams who are unreachable at times to make sure they have long term assignment documentation in place.
“In the process there can be many hurdles.The first hurdle can be when the client has industry policy to issue only short term contractual agreement that too during a particular time frame.
“If the settled employee’s H-1B extension time period falls during end of these contractual agreements, it becomes very difficult to prove to USCIS that his project is ongoing as the dates on contractual agreement are expiring soon.
“These Contractual agreements are known as Statement of work [SOW]. Master Service Agreement [MSA] etc.”
“It must be noted that sometimes vendors/prime vendors involved do not even agree to provide these documents due to organization’s confidential information leak, which makes H1B’s life more difficult,” says Chavan.
“The problem of establishing employer-employee relationship also remains uniquely unfair,” she says.
“When the employer-employee relationship question arises and if due to various reasons a person is unable to convince the USCIS, the poor H1B visa holder loses everything to start all over again along with their spouse and kids.”
“I hope lawmakers understand this soon and help decades old Green Card Backlog community and their families,” says Chavan.
“With an increased scrutiny, typically nowadays, client Letter/SOWs/MSAs/221Gs…. etc decide the fate of entire Green card backlog community, making him/her a scapegoat of this cumbersome documentation process and live in a state of fear forever.”
Is H-1B anxiety playing havoc with Indian lives in America? (January 17, 2020)
How 221g slips are playing havoc with H-1B workers from India (February 12, 2020