Knowing which documents to submit for an H-1B visa petition is important. Equally important, however, is understanding how each document should be presented and how the petition will be evaluated.
The H-1B visa is a temporary or non-immigrant U.S. visa that allows U.S. companies to employ foreign nationals who have theoretical or technical knowledge in highly specialized occupations.
H-1B visa occupations are professional-level jobs that typically require a university degree, the equivalent or higher. (The equivalent of a bachelor’s degree is usually considered three years of work experience for each year that would normally be spent at university).
The first five business days in April will be open to cap-subject H-1B filings that requires a submission of full petitions. This year, USCIS has re-ordered the selection process to consider applications of advanced degree holders first to fill the 65,000 cap-subject slots and then allocate the 20,000 cap-exempt visas to remaining advanced degree holders.
Visa petitions may be denied for incomplete information or lack of translations. USCIS officers are no longer required to issue Requests for Evidence (RFEs) or Notice of Intent to Deny (NOIDs). If the adjudicating officer has questions about a case or sees a technical issue, they can flat-out deny the petition instead of giving applicants an opportunity to correct clerical errors.
This year we can continue to expect increased scrutiny over whether a position meets the criteria of a specialty occupation with a continued focus on wage levels. A sharp and precise job description and with an accurate Standard Occupational Classification (SOC) code should be submitted with the H-1B visa petition.
The employer-employee relationship will also likely be investigated with a focus on the work availability for the time requested. USCIS will weigh multiple factors such as who directly supervises the H-1B worker and whether supervision is performed on or off-site. If the work is performed off-site, then the method and frequency of supervision are analyzed. USCIS further evaluates the employer-employee relationship with the use of proprietary information by closely examining whether the end work product is directly linked to the H-1B employer’s (petitioner’s) business.
With such extreme measures being taken to vet H-1B visa petitions, it is crucial to collect and organize all H-1B visa documents and information for proper form submission. The secret to successful handling of H-1B visa petitions is to coordinate a filing strategy with your attorney carefully.
A strategic approach to obtaining employment-based visas is streamlined through OnlineVisas Gateway, an online platform that automatically generates not just the USCIS forms, but the full document pack, including a professionally-designed brief and any other letters and documents that may be required to ensure compliance.
It is critical to thoroughly review and audit all of the documents the petitioning company uses in the recruitment and hiring of an individual. An in-depth review of the employee’s educational and professional record should be conducted. The employee’s record should then be compared to the industry standards and the company’s history of hiring for that position. Next, the relationships between the clients, vendors, end users and the employee need to be mapped and examined.
A critical approval strategy is to mitigate potential RFE questions in the initial petition by providing supporting evidence such as expert letters, notices and other documents to ensure full compliance, as USCIS no longer has to issue an RFE. It is essential for petitioners to build the case with supporting documents.
Once a strong case is built, and the petition is ready for submission, experts should evaluate the information, provide opinions and then draft a 15–20-page legal brief that demonstrates precisely why the visa application must be approved. This legal brief serves to preemptively address the exact policy memos and regulations USCIS is currently applying. The legal brief should also cite legal documents and experts using precise language.
Simply submitting the necessary H-1B visa forms to USCIS is no longer enough to get an H-1B visa. Petitions need to be presented more like other legal cases with a comprehensive legal brief filed along with the other required documentation. These briefs should offer a complete legal argument as to why USCIS adjudicators should grant the H-1B visa. Presenting a full legal case has proven hugely successful.
About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas.com., the intelligent Immigration platform. Jon is an Amazon number one best-selling author of H1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon can be contacted at email@example.com or 405-310-4333 office or 405-821-5959 mobile.