H-1B Specialty Occupation
The H-1B visa is one of our favorite types of nonimmigrant worker petitions to file. But in recent years, it has come under intense scrutiny due to fraudulent behavior and layoffs of US workers. Having filed complex H-1B petitions for over 15 years, we have watched policies changes which included in-depth analysis for those employed “off-site” or placed at “end client” sites.
To adapt to these changes, our law firm works with the employer to create a detailed job description, and detailed job duties that include the percentages of time spent on each set of duties, examine all contracts and/or SOWs, and of course, proving an “employer-employee relationship” exists when the foreign national is placed at a “third party” site.
What Makes the H-1B Such a Desirable Visa Status?
There are many benefits to having an H-1B visa. The H-1B status allows for a total of six years, divided into two three-year increments. After the six years are completed, the foreign national must either change status, or, depart the US. After being outside of the US for one year, the foreign national again becomes eligible to receive H-1B status.
Second, only two (2) nonimmigrant visas are “dual intent”: the L-1 and the H-1B. By “dual intent,” we mean that unlike every other nonimmigrant visa, at the consular interview or port-of-entry, it is not necessary to demonstrate home ties or the intent to return home after the authorized period of stay expires. So it is recommended that the I-140 process be started while on H-1B status, the sooner, the better, as the process can take a few years.
Third, although dictated by the US Department of Labor (DOL), the proffered wage can reach six figures; the whole point of DOL’s oversight is to protect foreign nationals from being exploited by being paid wages that are lower than those paid to US citizens.
In addition, the H-1B allows a foreign national to launch a start-up business and receive passive profits from that business as long as the foreign national is not working for that business. Finally, unlike the F-1 student visa, the H-1B allows the foreign national to work “part-time.”
What Do I Need to Prove to Have My H-1B Petition Approved?
There are two (2) main components to having your H-1B petition approved. The first criterion is that the occupation itself must qualify as a “specialty occupation”. In laymen’s terms, to enter the occupation, one must have a bachelor’s degree. For example, architects, engineers, lawyers, physicians, software developers are all H-1B occupations.
Example: Abby enrolls in a three-year Associate’s degree in Dental Hygiene. Upon graduation, she accepts a full-time, permanent position with a dental practice. After two years of experience working as a dental hygienist, Abby’s employer wishes to sponsor her for an H-1B. This occupation would not qualify for an H-1B because in order to become a Dental Hygienist, one does not need to obtain a bachelor’s degree. One can become a dental hygienist by attending a vocation school (not a 4-year university), with on-the-job training, or an Associate’s degree with one or two years of additional training.
The second criterion is that the foreign national must possess the US-equivalent of bachelor’s degree or higher in a field that is directly related to the specific specialty.
Example: Juan graduated from the University of Arkansas with a Bachelor’s degree in Computer Information Systems. After graduation, he obtained a position as a junior level software developer position using his OPT and now his employer wishes to sponsor him for an H-1B. The occupation of Software Developer requires a bachelor’s degree to enter the field, and Juan possesses a bachelor’s degree in a field that is directly related to software development.
How Can Your Law Firm Help Me Build a Strong H-1B Case?
Our top two goals are first, to obtain an approval, and second, bypass a Request for Evidence while in pursuit of our approval. So far, we have a 100% approval rate on our H-1B cases, of which only 1% of the cases received an RFE. We believe that we have developed a winning strategy and always adapt our strategy to the current administration. Over the years, the H-1B process has come under intense scrutiny and new policies are constantly put into place to protect the jobs of US workers and prevent fraud and abuse within the H-1B program.
The first thing we do is vet the sponsoring employer because we know that USCIS will closely examine the legitimacy of the company. We delve into whether the employer has a physical location, the number of employees, the gross and net income, whether the employee will work remotely, off-site employment, the salary that the foreign national will receive, the ability of the company to pay the proffered wage, and the year of incorporation, among other things.
During this stage, we work with the employer and foreign national to determine the most appropriate SOC code, the proffered wage, and the duties to make sure that the Labor Condition Application (LCA) is completed correctly. Much too often we get hideous RFEs from potential clients who have either used inexperienced immigration attorneys, or, whose employer did not prepare the petition properly. A common mistake we see is that the wrong SOC code was selected which resulted in a nasty RFE and in these cases. If an LCA is filed incorrectly, then there is high likelihood that the petition may be denied.
Once that analysis is done, we move onto the foreign national. At this point, we examine the beneficiary’s entire US immigration history beginning with the very first nonimmigrant visa application to present, making sure that the foreign national never fell out of status. Next, we exam their credentials, specifically their education and employment history. If the foreign national is using employment history instead of a bachelor’s degree, we ensure that the experience letters are drafted correctly. We review (and often edit) the resume to make sure it is not only consistent with our H-1B filing, but we also plan for the future, and ensure that it’s drafted properly for an employment-based case, namely PERM and I-140. If we are relying on the education, we ensure that the bachelor’s degree has a field of expertise directly related to the specialty occupation. If it is a foreign degree, we review the credentials evaluation to make sure it contains all of the information that USCIS would want.
The document that ties everything together is the Petitioner’s Support Letter which describes the legal burden, background on the sponsor, what the specialty occupation, why the employer requires a temporary worker, and how the foreign national qualifies for the position, as well as any other legal issues that are pertinent to the case.
Lastly, when we “paper” the application, we do so in manner that addresses each and every legal burden, and often we submit more than one type of evidence of each so USCIS always has at least two different pieces of evidence per legal burden. Our cover letter contains captions of each legal burden with the specific evidence listed below making it easy for USCIS to find the evidence pertaining to each legal burden.
What Are the Different Way to Avoid the H-1B Lottery?
There is a difference between a “cap exempt petition” and a “cap exempt petitioner.” H-1B extensions, amendments, change of employer petitions, or previously approved petitions (within the past six years) that were never used and have remaining time are all “cap exempt petitions” because they have all previously been counted against the cap. Also exempt are J-1 nonimmigrants and who have received a waiver under INA §214(l) (such as working in health professional shortage areas).
As listed below, a “cap exempt petitioner” is a higher-education institution, a research organization, or a non-profit affiliated with either:
- Institutions of higher education;
- Nonprofit organizations “related to” or “affiliated with” institutions of higher education (“related to” or “affiliated with” can include a “nonprofit has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” );
- Governmental research organizations;
- Nonprofit research organizations;
- Those working at cap-exempt institutions but whose petitioner is not cap-exempt; and
- Those working at cap-exempt organizations with concurrent H-1B employment at cap-subject employers,
The last two of these cap exempt petitions are rarely used for some reason, but are an untapped gold mine!
Our favorite H-1Bs to file are when the foreign national is “employed (or has received an offer of employment) at” a governmental research organization (“a qualifying institution”) and will perform all or a portion of the job duties “at” the qualifying institution. These are the “holy grail” H-1Bs becuase it allow a foreign national to be employed by a for-profit company and yet entirely avoid the lottery.
But this is not a “slam dunk” petition. The difficulty is in arguing that the beneficiary’s duties are “directly and predominantly related to, and in furtherance of, the normal, primary or essential purpose, mission, objectives or function of the qualifying institution.”
Another untapped H-1B strategy is the “concurrent H-1B.” This one is a little more complex and requires two H-1Bs being filed, one by a cap-exempt petitioner, and the other by a cap-subject (or for-profit) company.
The rationale goes like this: an H-1B employee who is not subject to the cap with one employer will not be subject to the cap if he or she obtains part-time employment with another employer, even if a new H-1B filing by the other employer is subject to the cap. This might sound counter-intuitive, but the reasoning is that you have “already been counted against” the cap when you obtained your first-employment with the non-profit petitioner. So as long as you have not stopped being employed with the cap-exempt employer, you will not be subject to the cap with a completely different employer.
A cap-subject petitioner must prove that the beneficiary is: 1) currently employed at a cap-exempt institution, 2) that the beneficiary’s employment with the cap-exempt institution is expected to continue after the new cap-subject petition is approved, and 3) that the beneficiary can reasonably and concurrently perform the work described in each employer’s respective positions. However, the validity period of the petition with the cap-subject employer cannot extend beyond the period for the cap-exempt employer.
Additionally, if the beneficiary’s employment with the cap-exempt employer is terminated before the end of the validity period listed on the approved H-1B petition, the beneficiary (who is concurrently employed) becomes subject to the H-1B cap, unless the beneficiary was previously counted with respect to the six-year period of authorized H-1B status or another exemption applies. Remember that the second that you stop working for the non-profit, you become subject to the cap. So you will need to time your resignation from the non-profit very carefully so your petition is not denied for not having a visa number available and make sure that you have been selected in the lottery and have an approved cap-subject H-1B petition. If at any point, the cap-exempt employment converts to cap-subject employment, then USCIS may revoke the cap-subject petition.
What Is the General H-1B Process?
First, the employer submits an electronic registration through their USCIS MyAccount. They need to complete a few biographical questions about the sponsors and the foreign national. An immigration attorney is not needed for this step and it only takes a few minutes. Usually, the registration period is open for a little over two (2) weeks and begins in March of every year. The lottery is run at the end of March and those who are selected are notified through the USCIS portal.
If selected, the petitioner has only about 60 days to register the company’s FEIN with the US Department of Labor (if it has never submitted an H-1B petition before), prepare and file the LCA, and prepare and file the H-1B package. If USCIS approves the H-1B petition, the earliest that the foreign national can begin working on H-1B status is October 1st of the same year.
The H-1B allows for a total of six years, in two three-year increments and any time spent outside of the US can be recaptured when filing the final extension. Beyond six-year extensions are available if the PERM process has been initiated (preferably no later than the fifth year of H-1B status, but the sooner, the better) or there is an approved I-140 and the priority date is not current.
What Advice Can You Give Me When Applying for the H-1B Lottery?
First, always maintain nonimmigrant status while going through the H-1B process. Second, PLEASE hire an experienced employment-based immigration attorney. The H-1B process is a snowball effect where the information on the LCA is transferred to the I-129.
Too often we see filings botched by the employer which incurs additional stress and anxiety, legal fees, and a lower chance of approval. If you were lucky enough to be selected in the lottery, please encourage your employer to contact our law firm. We offer a courtesy 10-minute phone call with the petitioner to discuss eligibility and even provide an over-the-phone legal fee estimate.
We have even seen cases where the H-1B initial and extensions were approved, however, the I-140 was denied because of information that was included on the prior H-1B. Attorney Sequeira always “thinks 10 steps ahead” with a view on the ultimate goal – naturalization.
In some instances, we have had clients get laid off. Before being laid off, some foreign nationals are often able to find H-1B petitioners willing to sponsor them and timely filed a change of employer H-1B which is approved. In other cases, a beneficiary has found a new petitioner to file an H-1B petition, but not before falling out of status and accruing unlawful presence as a result of termination, layoff, or resignation. In these cases, the subsequently filed H-1B petition is usually approved, but the beneficiary is required to depart the U.S. to consular process.
Should you end up falling out of status and accruing unlawful status, there is a form of relief called nunc pro tunc (meaning “now, for then”). To qualify, we must prove: 1) the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner; 2) that the delay is commensurate with the circumstances; 3) that the foreign national has not otherwise violated his or her nonimmigrant status; 4) that the foreign national remains a bona fide nonimmigrant; and 5) the foreign national is not the subject of deportation proceedings or removal proceedings.
We are highly experienced winning these cases for both students who fell out of F-1 status and those on H-1B status. For one of our clients, we were able to obtain H-4 status for a beneficiary who had accrued fifteen (15) months of unlawful presence (and without an RFE!).
How We Can Help
We would love to help you prepare your H-1B petition whether it is a first time H-1B, an amendment, a change of employer, or an extension. Many of our H-1B sponsors are “first-time filers” or have not kept up with the changes regarding H-1B petitions. We take a “hand-holding” approach so all the employer needs to do is follow our guidance and provide us with the requested documentation. If the employer allows us, we are even happy to work primarily with the foreign national since employers are usually very busy.
Remember, we do not just prepare the H-1B package, but we also prepare our filing with an eye on a employment-based green card and naturalization. We are always thinking 10 steps ahead! Email us now for help with your H-1B petition.
