H-1B Lottery 2022: Strategy For Success In FY 2023

Lucky for tech companies and third-party contractors, petitioning for an H-1B visa is much more straightforward than it was during the Trump administration. While H-1B approval numbers are up, it can be tempting to revert to the old way of filing for H-1B visas. 

However, how cases are put together for an H-1B visa petition has undergone so many changes that going back to "business as usual" is simply not an option when maximizes your chances of approval.

We've put together a strategy guide that details how we got 100% of H-1B cases approved.

1. H-1B Petitioner Description
Describe the company that is hiring the Beneficiary. Include:

• headquarter location,
• year established, 
• number of employees and 
• annual revenues.

You may refer to its website or marketing material.

Pro-tip: For new or small companies, add additional information like achievements, assets (including intellectual property), significant clients, owners or partners, and their relation to other larger companies, investments, or media.

2. Title of Job, Duties & Tasks
USCIS refers to the Occupational Outlook Handbook "OOH" to determine whether the job qualifies as a specialty occupation. The title is not as important as the job duties and tasks are.

The task-based summary tab lays out the standard version of the job and its typical tasks. From there, click "similar position" and see if the job title is similar to a specialty occupation.

3. Categories of Duties & Tasks
The worst thing to do is copy the OOH description and use it as the job description. USCIS will compare what you write to the OOH and decide the job isn't real because a real job.

The key is to use the OOH description as a guide to help you organize the job duties.

Put the job duties into categories and the percentage of time that the employee will spend on each. Next, describe the specific tasks in each category. 

You can talk about a particular project and use examples such as the type of computer language they'll be using. If you mention the technical aspects like computer language, don't use abbreviations; use layman's terms. 

Pro-tip: Go into as much detail as possible. You don't need to limit the task description to one particular area.

Example: Java Developer Job Description and Duties

• Prepare Data Center Transformation project plan and execution of the transformation strategy. __% 
• Analyze and manage project risks, issues, costs, benefits and make relevant recommendations to the business and technology leadership team. __% 
• Manage all project financials and budget, ensuring adequate funding for project delivery. __%
• Lead large-scale implementation and operations, supporting and implementing mission-critical infrastructure or applications. __% 
• Manage the project to move servers/systems/applications from one data center set (primary/secondary) to the target data center set. Including procurement, resource acquisition, budgeting; developing, monitoring and controlling schedules; identifying and resolving issues and risks; and communicating with stakeholders) __% 
• Evaluate complex situations and identify viable solutions that create successful outcomes. __% 
• Work with the Project Sponsor and Steering Committee to facilitate decisions. __%

4. Prove Highly Specialized Knowledge
Show how the duties relate to the beneficiary's degree. Connect the beneficiary's degree to the job requirements—detail how the specified job relates to the employee's degree. If your employee has the listed degree, say that. If they have a similar degree, demonstrate how their educational background led them to specialized knowledge.

5. Employment Place and Description
Put the address where duties will be performed and note whether it is at the location of the petitioner or a third-party client.

Consider adding this type of language:
The beneficiary will perform services at the third-party location of Company A located at [address]. Petitioner maintains the right to control the Beneficiary based upon the following factors: 

• Right to hire, fire, supervise, and is responsible for the overall work for the H-1B duration. 
• The petitioner will pay the salary, benefits, and payroll taxes. 

Include language in the agreements between the petitioner and beneficiary, the petitioner and client. In the employee handbook, indicate the petitioner's right to control. Show that the services rendered by the beneficiary are similar to the services provided by petitioner in its ordinary course of business.

6. Prevailing Wage
From the job description in the OOH, click Prevailing Wage, and you will arrive at www.flcdatacenter.com. Select the state and county where the job location is and plug in the name or code from the similar job position from OOH.

Example: If you select the "All Industries" database for 7/2016 - 6/2017. Your search would return the following: 

Print Format Area Code: 36084
Area Title: Oakland-Hayward-Berkeley, CA Metropolitan Division OES/SOC
Code: 11-2021 OES/SOC
Title: Marketing Managers Geo
Level: 1 Wage: $49.91 hour - $103,813 year
Level: 2 Wage: $64.92 hour - $135,034 year
Level: 3 Wage: $79.92 hour - $166,234 year
Level: 4 Wage: $94.93 hour - $197,454 year
Mean Wage (H-2B): $79.92 hour - $166,234 year
*This wage applies to the following O*Net occupations: 11-2021 Marketing Managers.

Level 1 Prevailing WageThe following is the exact language from the Employment and Training Administration Prevailing Wage Determination Policy Guidance "Nonagricultural Immigration Programs" Revised November 2009 states: 

"Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited if any, exercise of judgment. 

• The tasks provide experience and familiarization with the employer's methods, practices, and programs. 

• The employees may perform higher-level work for training and developmental purposes. 

• These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy."

[Company] employment letter and job duties indicate Mr. Starr's entry-level position and under the supervision of (Title of Supervising Position).

7. Employer-Employee Relationship
Federal Caselaw – ITServe v. Cissna:

"An employer may retain an H-1B employee during "nonproductive" periods as long as the company continues to pay the required wage to the H-1B visa holder."
ITServe Alliance, Inc. v. Cissna, Civil Action No. 18-2350(RMC), Dist. Court, Dist. of Columbia 2020.

Policy Memo – June 17, 2020 PM-602-0114: Rescission of Contracts & Itinerary Policy Memoranda. 

1. Meets at least one of the "hire, pay, fire, supervise, or otherwise control the work of" factors concerning the beneficiary. Submit a Labor Condition Application (LCA), contracts between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist; 
2. Job must exist at the time of filing; 
3. No requirement for 3rd party contracts or chain of contracts; 
4. No requirement for an itinerary of day to day assignments; 
5. No Benching but cite ITServe Alliance for acceptability of periods of non-employment; 
6. Limitation of visa term is permissible by USCIS, but see ITServe for restriction against this practice. 

8. Hiring History for Specialty Occupation
You must meet one of the four criteria for a specialty occupation. Under 8 CFR 214.2 (h)(4)(iii)(A)(3), a job qualifies as a specialty occupation if the employer typically requires a degree or its equivalent for the position. 

Create a list of the titles, names, and degrees of both current and previous employees to establish that the job requires the specified degree or similar one. 

9. Industry Requirement
According to 8 CFR 214.2 (h)(4)(iii)(A)(2), a job is a specialty occupation if the degree requirement is common to the industry and in parallel positions among similar organizations. Alternatively, an employer may show that the particular job is so complex or unique that only an individual with a degree can perform the job.

Pro-tip: Select ads for the same position with companies of similar size. You can search the size of a company on Crunchbase, Dun and Bradstreet and LinkedIn. Make sure the ads require a degree and do not say "or experience," or else USCIS will find that a degree is not required will likely deny the H-1B.

10. Cap Exempt
Higher Education and Nonprofit Research entities are not subject to the H-1B cap if there is an affiliation with at least one nonprofit research institution. If that is the case, provide documentary evidence.

11. Beneficiary Description & Degree(s)
Describe and personify the beneficiary, tell their story– put the applicant's degree(s), the school(s), and the year(s) attained. Describe relevant positions they've had in the industry and their accomplishments. Remember to upload a great picture. Check out their LinkedIn profile.

12. Beneficiary Degree Equivalent
Immigration will accept a three-to-one work to study ratio under 8 C.F.R. §214.2 (h)(4)(iii)(D)(5). Every three years of work experience in the industry is equivalent to one academic year at a university.

"For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training or work experience must be demonstrated for each year of college-level training the alien lacks."

If the beneficiary's education were an associate's degree or two years, the work experience would need to be six years to meet the education requirements.

If the beneficiary doesn't have a bachelor's degree, provide the name of any institution of higher education, the credited course work, and time enrolled at the school. Also, give the job titles, industry, and duties of previous employment. Support the work experience with contracts, payslips or letters

Note: Best practice is to have an expert evaluate the work and educational experience. The evaluating expert must show that they have the authority to assess credentials.

13. Degree Evaluation
Provide the person's name who evaluated the degree, position, and organization. Also, list the evaluation company and the degree equivalent.

Example:
On behalf of Relativity Evaluation Services, Dr. Albert Einstein of Princeton University found Mr. Smith's BS Degree in Horticulture from Oxford University in England equivalent to a four-year degree in Horticulture at an institution of Higher Education in the United States.

On occasion, the United States Citizen and Immigration Services (USCIS) requires experts to interview the individual. All experts are not equal, as USCIS prefers some to others.

14. Degree and Transcript Application
Analyze transcript(s) and describe how the beneficiary's degree and specific classes or modules provide the knowledge they need concerning the position.

What to look for:
Does the beneficiary have a bachelor or higher degree that gave them all or some knowledge required for the job? Did the beneficiary change majors from a degree that was related? Did they obtain an associate's degree in a related major?  

15. Owner as Employee for H-1B Beneficiary
A beneficiary who is the sole owner of companies can also meet the requirements for an H-1B visa but must establish employee status. 

The Nationwide v. Darden Nationwide Mutual Ins. v. Darden, 503 U.S. 318 (1992) indicates several elements defining employee, including being fired. If a beneficiary reports to a President and has a board of directors, then the employee is fireable, therefore qualifying them as an employee.

Pro-Tip: An effective strategy is to establish a board of directors and create employment agreements showing the person is a terminable employee. Establishing an owner as the beneficiary will only work if done correctly.

16. Employer-Employee Relationship
USCIS evaluates the H-1B employer-employee relationship by weighing multiple factors. They look at who directly supervises the H-1B worker and whether it is on-site or off-site supervision. 

If the work is at a third-party site, then the method and frequency of management are analyzed. In some cases, USCIS uses proprietary information to check the direct link between the end work product and the employer's business.

According to ITServe Alliance, Inc. v. Cissna, the negotiated memo waived the contracts and itineraries requirements. H-1B petitioners do not need to include third-party contracts, schedules, or letters in H-1B petitions. 

Pro-Tip: As part of the H-1B approval strategy, it is critical to analyze the employer-employee relationship and provide supporting documentation.

Furthermore, petitioners are not required to submit specific evidence for a daily itinerary. In the landmark federal case: Serenity Info Tech v Cuccinelli

"There is no basis in the INA [Immigration and Nationality Act] or the Agency's regulations for requiring a petitioner to submit evidence of specific, qualifying work requirements and micro-location information for every single day of the visa period." Serenity Info Tech, Inc v. Cuccinelli, CV-0647, Northern Dist. Court of Georgia, 2020.

17. Failure to Consider Evidence
Federal Caselaw: Barchart.com v. Koumans

USCIS faulted Barchart.com for failing to show the position required a bachelor's degree or higher. However, USCIS didn't consider the Robinson Declaration 613 F.3(d) at 194: 

"[A]n agency's refusal to consider evidence bearing on the issue before it constitutes arbitrary agency action within the meaning of [5 U.S.C.] § 706."

Because USCIS failed to consider the Robinson Declaration "as evidence bearing on the issue," the Federal Court found USCIS actions arbitrary and capricious, resulting in the decision to vacate and remand the H-1B denial.

Barchart.com v. Koumans, U.S. Dist. Court for the Dist. of Columbia, 2020.

18. H-1B Single Degree Requirement
Federal Caselaw: InspectionXpert v. Cuccinelli 

InspectionXpert, No. 1:19cv65 (March 5, 2020), USCIS denied an H-1B because the employer was willing to accept a candidate with a general engineering degree. InspectionXpert held that USCIS could not require a degree in just one particular subspecialty for a job to qualify as an H-1B specialty occupation. 

The Court, relying on the holding of the U.S. Supreme Court in Kisor v. Wilkie, found that USCIS's interpretation of its H-1B regulation was unreasonable and not entitled to deference: "an engineering degree requirement meets the specialty occupation degree requirement." Further, the IXC court affirmed that the adjudicating officer's adverse decision conflicted with USCIS's long-standing tradition of recognizing that "a position can qualify as a specialty occupation even if it permits a degree in [a broad field encompassing] more than one academic discipline."