What are the elements that constitute an approvable H-1B petition? This is the question that my clients who call my Columbus, Ohio office ask frequently. What can the employer and employee do to help their H1-B visa attorney get the best results for them? I once even had a client tell me: “Please give me a list of your most important items that would help you get my case approved.”
Three Main Pillars of an H-1B Petition
As an H-1B attorney who has filed over 1,000 petitions in my career, there are three main issues in mind that would determine whether an H-1B petition will be approvable: 1) issues related to the employer; 2) issues related to the position; and 3) issues related to the prospective employee.
Issues related to the employer normally depend on whether the employer has the ability to pay the wages of the prospective employee. In other words, whether the employer is truly an employer and not an agent who places employees at temporary assignments without controlling much of their activities.
Depending on the size of the employer, USCIS will take a differing position. Our firm has for more than a decade represented large employers having more than 30,000 employees obtain visas and green cards. I have also represented many small firms whereby we filed H-1B petitions for their prospective employees.
If you are a large employer, chances are that USCIS is comfortable with the size of the organization and will trust that the employer is able to pay the employee’s wages. USCIS will also require that the hiring company passes the IRS test of employer-employee relationship in that it controls the activities of the employee on a daily basis.
Now, when it comes to the smaller employer, the story is drastically different. The smaller employer (less than 50 employees) has additional documentation it must submit to create this comfort level depending on the circumstances. This additional documentation includes, but is not limited to, the existence of in-house projects, business plans, contracts for work, financial information, and much more. When it comes to smaller employers, proper planning is vital as the days of USCIS rubber stamping H-1B visas are over.
In addition, it is important to note that USCIS is now keeping a keener eye on smaller employers as there is a feeling that smaller employers violate the regulations more often. Smaller employers are encouraged to plan their H-1B petitions with a competent Columbus immigration lawyer, one who has many years of experience in H-1B petitions to make sure that contradictory information is not filed. This is what our firm has advised for almost a decade: get your story straight before you file with the USCIS! This process should be a concerted effort between the H-1B immigration lawyer and the employer.
The second issue deals with whether the position is a specialty occupation meritorious of getting an H-1B visa. Just by naming the title of the position as “programmer analyst” is not sufficient to cause a position description to pass USCIS scrutiny. The position responsibilities are essential in achieving the “specialty” nature of position description.
In addition, copying standard language from published U.S. Department of Labor or USCIS material will not be satisfactory. USCIS has grown very impatient with employers or attorneys who do that. So, make certain that you allow your attorney to spend the time to analyze the position description carefully and to make certain that it is in fact a “specialty occupation.”
Finally, the foreign-national must be eligible to receive the H-1B visa or status. If the foreign employee is outside the U.S., then there is no issue in proving that the H-1B visa employee had maintained status. There is an issue if the employee is currently in the U.S. Make certain that you give your H-1B lawyer sufficient documentation that proves proper status.
The other relevant issue that pertains to the prospective employee is whether or not he or she is qualified to fill the particular position. If the foreign employee has a foreign degree, then an equivalency evaluation from a reputable evaluator must be obtained. There are special rules that apply if the employee has less than a four-year bachelor degree or its equivalent, and those rules must be studied and followed carefully.
Get Help with H-1B Petitions
These are short synopsis of some of the large issues that governs the approvability of an H1b visa. In the end I would like to leave the reader with one thought: consult with an aggressive and reputable H1b visa lawyer one who will help your company achieve its objectives. The immigration lawyers at Shihab & Associates, Co., LPA, are very experienced in H1b petitions for large and great emphasis on small employer issues.
Sam Shihab & Associates Can Help
If you are an immigrant with any questions or concerns regarding your immigration case, H-1B visas, green card applications, or any other legal matter, speak at once to an experienced Columbus immigration attorney. A good immigration lawyer can help you and your family with any immigration issue you face and defend you if you’re accused of violating immigration law.
Our immigration attorneys will review your forms and applications for thoroughness and accuracy. Immigration laws will continually change, but an experienced immigration attorney will always be able to give you the most up-to-date immigration advice you need.
Contact us today!