Clarity and Strength in Immigration Law

How to file a successful H-1B petition – Part 1

The H-1B petition for specialty occupation workers is one of the most popular visa classifications used. However, having an H-1B petition approved is not as easy as submitting the required forms and submitting the prospective H-1B employee’s resume and degrees. Rather, crafting the successful H-1B petition depends on the preparer artfully addressing a series of issues, all of which depend on the specifics of the case being submitted. In this post, I will some of the common issues seen in requests for evidence issued by USCIS.

The position must be a specialty occupation (professional) position

The H-1B classification is created for foreign national workers who work in specialty occupation positions. A specialty occupation is usually defined as an occupation that typically requires the minimum of a bachelor’s degree for entry into the profession. How to document this? The key element here is the detailed job description. If the job description is vague, too short, or lists job duties that do not clearly require at least a bachelor’s degree to complete, it is likely USCIS will issue a request for evidence or possibly deny the petition. While this is typically not a problem for some of the more common professional (software engineer, architect, etc), it is absolutely critical, especially for positions that may not clearly be professional in nature, such as positions in hospitality, some marketing positions, etc.

Best practices:

  • Make sure job description is complete (includes all job duties, and is not too short)
  • Make sure each task outlined is detailed; no vague language
  • Make sure each task outlined is one that would require a person with a bachelor’s degree to complete; not administrative or clerical tasks

The degree must be related to the position

The H-1B classification does require both that the position be one that generally requires at least a bachelor’s degree, and that the beneficiary (person for whom the petition is submitted) hold a US bachelor’s degree or the equivalent. While holding the bachelor’s degree is required, that alone is not sufficient. Rather, the degree must be in a field that is related to the specialty occupation. That is, if the H-1B position is in accounting and the person holds a degree in fine arts, there’s going to be a problem with the adjudication. If you have a degree that is not clearly and directly related to your position, you should speak to an experienced immigration attorney. It may be possible for the attorney to make a strong argument as to how the degree is related, even if it’s not immediately clear. For example, the position of software engineer frequently requires a degree in computer science or computer science engineering. However, I have often made successful arguments that a degree in mechanical engineering or electrical engineering is related. (This is just an example; success in one case does not mean another case will be successful.)

Best practices:

  • Make sure the degree is clearly related to the position
  • If the degree is not clearly related, make sure to consult with an experienced business immigration attorney to determine how to best document the connection between the degree and the position

The employer must show a need for the position

USCIS must be convinced that the employer has a bona fide need for a person to fill the H-1B position; that is, USCIS must confirm that there is H-1B work available for the H-1B beneficiary. Documenting this need when the beneficiary will work at a third-party client site is the subject of a future post. However, even when the employee will be working directly for the employer at the employer’s worksite, this must be shown. In some instances, the need is quite clear, in which less documentation may be needed than more complex cases. However, in some cases this becomes even more important. This is especially true for smaller businesses, newer businesses, or cases in which the position is a bit unusual. Take for example a business development professional for a small, new business that provides marketing consulting and services to businesses targeting a specific ethnic group. This is a pretty specific industry, and not the most common H-1B position. Because the business is both small and new, and because not every new small business has a business development professional, it was necessary to clearly outline why the business needed a business development professional. We clearly documented the need in the community for the company’s services, included a detailed business plan, and clearly tied the beneficiary’s tasks to the goals outlined in the business plan. We also made sure that the duties were very specific, and high level (i.e. not administrative). Further, we documented that other similar businesses in this narrow field had similar positions.

Best practices:

  • Make sure to clearly explain why the petitioning company has the need for specific position
  • If a new company, consider preparing a detailed business plan with financial projections, and tie the beneficiary’s duties to the achievement of the goals in the business plan
  • Consider including documentation that similarly sized businesses in the same industry also have the same or similar position in their organization
  • Where possible, consider including contracts, invoices, or other documentation that shows that the petitioning company has actual work for the H-1B beneficiary to do

In conclusion, preparing a successful H-1B petition requires careful analysis of the details of the specific case at hand, and carefully drafting the supporting letter and documentation to ensure all requirements are clearly met. The above information is for educational purposes only. You should consult with an experienced business immigration attorney before taking or not taking action based on this information. If you have questions about H-1B preparation and processing, please contact Emily Sumner at Sumner Immigration Law atesumner@sumnerimmigration.com.