Cutting Through the H-1B Bureaucratic Red Tape

Since Indian “techies” are the primary recipients of H-1B visas, IT companies are being disproportionally affected by the ongoing changes to the H-1B filing process. 

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To understand a broad spectrum of issues associated with visa denials, OnlineVisas teamed up with a prominent association of tech companies, ITServe Alliance, to collect examples of denials from different lawyers and companies for analysis purposes. This analysis allowed us to create a framework to address five primary reasons for rejections.

OnlineVisas.com’s success rate for H-1B visas this year is 100%. In 2018, we had a 95% success rate, 36% higher than the nationwide average.

Our framework to address primary reasons for rejections

For a company to petition for an H-1B visa on behalf of the employee, the job must qualify as a specialty occupation. Previously, O*Net was the most commonly used database to figure out whether a position qualifies as a specialty occupation.

However, USCIS switched to a database called the Occupational Outlook Handbook (OOH) that relies on a much narrower definition. The OOH lists professional occupations and gives the educational background requirements.

Just having a degree is no longer enough; it has to be a specific type of degree. USCIS looks at the components of the job, not just the title. 

This year we can continue to expect increased scrutiny over whether a position meets the criteria of a specialty occupation with a focus on wage levels. USCIS has taken the stance that a job does not qualify as a specialty occupation if there are too many applicable degrees, or if the degree is in the adjacent discipline, as used to be acceptable.

The employer-employee relationship is also investigated with a focus on the work available for the time requested. USCIS weighs 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.

To address specialty occupation and employer-employee relationship issues, we form a strategy upfront. We evaluate the job, the company’s third-party relationship in cases where an end-user that might be different. We do this by assessing the company’s organic documents such as contracts, employee handbooks, invoices, the statements of work, and the job orders they produce. We address the law and how each exhibit applies to different regulations. We look at everything involved, and those organic documents become pieces of evidence.  

We plug the company’s information into our software to identify any potential issues and then provide supporting evidence to handle problem areas. This is what is called a brief. It anticipates any questions that USCIS might ask and answers them, making the decision process easy for immigration adjudicators. Next, we describe the industry as a whole, establish how the specific job fits into the industry, and detail how the requirements are being met. 

Immigration cases are being denied at a significant rate, meaning that briefs are a critical component of success. Due to the change in approach to immigration by the current administration, the approval rate for H-1B visas went from 88% in 2016 to 59% in 2017.

Part of our briefing process is to create a beautiful document that looks and reads more like a magazine. Adjudicators have stacks of paperwork that all look the same. So, we create documents that stand out and are simple to understand.

Our approach is “a picture speaks a thousand words.” A picture of somebody in their work environment, whether they are a techie, an athlete or a CEO, just doing what they do, puts a face to the application and gives credibility.

We take it a step further and humanize the applicant by telling their story. We also tell the American company’s story and why they are hiring this person. We describe the industry, how the specific job fits into that industry, and detail how the requirements are being met

Finally, we share the winning case law, winning arguments, winning strategies, and effectiveness from all of our case data with our clients. We team up with the HR department, or whoever is in charge of hiring, to help them improve their immigration processes.