ARTICLE
28 March 2023

Pointers For Preparing H-1B Cap Petitions

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Fakhoury Global Immigration

Contributor

At Fakhoury Global Immigration, our motto is Global Vision, Personal Attention. We provide our clients with the most comprehensive legal immigration services available while tailoring them to their specific requirements. Offering a full range of immigration legal services, we aspire to be the one-stop solution for all our clients’ global and U.S.-based needs. Our team of lawyers and paralegals are specialists in all U.S. and major international visa classifications. We provide comprehensive and peerless legal services that are cost-competitive, custom tailored, fully compliant, and successful in achieving our clients’ objectives.
The H-1B visa classification is a nonimmigrant visa category designed for foreign workers in specialty occupations.
United States Employment and HR
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The H-1B visa classification is a nonimmigrant visa category designed for foreign workers in specialty occupations. It allows U.S. employers to temporarily employ skilled professionals from other countries in positions that require specialized knowledge and expertise. Due to the limited number of slots available, and the high demand for these spots, the U.S. Citizenship and Immigration Services (USCIS) conducts a lottery each year to determine which of the registrants' respective cases are carried forward to adjudication.

As the lottery for the Fiscal Year (FY) 2024 H-1B cap wraps up, employers shift their focus to preparing and submitting their H-1B petitions to the USCIS. To ensure the highest probability of success, employers should consider the following pointers when preparing their petitions:

In order to be successful, the employer must provide evidence to demonstrate the following:

The Offered Position Qualifies as a Specialty Occupation: The job offered must be in a "specialty occupation," which generally requires a bachelor's degree in a specific field for entry into the occupation. Examples of positions that are specialty occupations include: engineering roles, architects, many information technology (IT) and software development roles, positions in the medical fields, and many others. To determine this, the USCIS looks to the U.S. Department of Labor (DOL) data in its O*NET OnLine Directory and its Occupational Outlook Handbook to determine what is typically required for different positions.

Each petition should include evidence of the assigned work. If the assigned work is client-facing, employers will often include statements from the end-client such as copies of letters from the client attesting to the nature of the relevant work along with copies of relevant project documents such as Statements of Work (SOWs), Purchase Orders (POs), and/or Master Services Agreements (MSAs). If working directly for the employer, this can include information about the project (e.g., project plan) along with general information about the company, such as brochures, annual reports, or promotional materials, to establish its legitimacy and capacity to employ the foreign worker in the specialty occupation.

The Foreign Worker Meets the Educational Requirements of the Offered Position: To demonstrate that the foreign worker meets the education requirements, the employer will need to show that the worker has at least a bachelor's degree, or the equivalent, in a field directly related to the specialty occupation.

If these studies took place outside the U.S., the USCIS will want to see an evaluation of these studies by a qualified evaluator to confirm they are the equivalent to a U.S. degree in the required field. If they are not equivalent, the employer will need to consider whether the foreign worker has sufficient work experience to show the combination of academic studies and work experience are the equivalent to at least a U.S. bachelor's degree in a field related to the offered position.

To document this, the H-1B petition filing should include documentation of the foreign worker's educational credentials including all post-secondary diplomas and transcripts, and if qualifying based on a combination of academics and work experience, copies of experience letters from prior and/or current employer(s). If a position requires licensure, evidence demonstrating that the foreign worker meets the licensure requirement or will be able to upon receipt of H-1B status, if it is required.

Certified Labor Condition Application (LCA). Each H-1B petition must include a certified LCA that contains both the wage rate being paid to the foreign worker but also wage data for positions in the same classification as the foreign worker for the same area of intended employment. In its filing, the employer attests to the government that it will pay the foreign worker the highest of either the prevailing wage (i.e., the wage the DOL has determined the industry pays for that area of employment) or the actual wage (i.e., the wage the employer pays similar workers in the specified area of employment).

Maintenance of Status. If the foreign worker is currently in the U.S. in a different status, the employer must include evidence to show that the foreign worker is maintaining her current status before the USCIS will grant a change of status to the H-1B classification. Similarly, when extending status, the USCIS will only extend the H-1B status in the U.S. if the foreign worker can show that she maintained her H-1B status since her most recent entry into the U.S.

Employers must remember that USCIS evaluates each H-1B petition on a case-by-case basis. The more relevant and convincing evidence you provide, the stronger your case will be. It is essential to tailor your documentation to the specific job and the foreign worker's qualifications to demonstrate that both meet the H-1B requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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