H-1B Visa Application Tips

Published by: Law Office of Lu & Associates | March 5, 2022 |

In 2021, USCIS conducted three lottery draws for H-1B work visa applications in late March, late July, and early November, respectively. According to the latest update released by USCIS, this year’s H-1B lottery entry will begin on March 1, 2022. If sufficient registrations have been received by March 18, 2022, a draw will be conducted immediately. Therefore, applicants who need to apply for an H-1B visa in 2022 must act early. USCIS will notify applicants who have been selected by March 31, 2022.

How to increase your H-1B lottery odds?

Smart applicants may ask: “In order to increase the H-1B lottery odds, can a same employer submit more than one registration for the same employee? Please be noted that this practice is prohibited by the USCIS. Duplicate registrations will be considered invalid. However, if unrelated employers submit multiple registrations for the same employee, they will not be considered duplicate registrations. For example, employer A submitted a registration for you as a design engineer, and employer B also submitted H-1B registration for you for the position of project manage. This is allowed. However, if there is no reasonable business reason for two affiliated companies, such as a parent company and a subsidiary company, filing two registrations for the same employee, even if the two companies have different Employer Identification Numbers (EINs), they will be subject to 8 CFR 214.2(h) (2)(i)(G). The registrations will be deemed invalid.

Your registration will have a greater chance of being selected if you have a master’s degree or above from a U.S. institution accredited by a nationally recognized agency. Because in addition to an annual limit of 65,000 for regular H-1B visa cap, 20,000 quotas are specially set aside for employees with a master’s degree or above in the United States, the probability of being selected is relatively high. If you have not obtained a master’s degree before the closing of the lottery registration on March 18 this year, can you still take advantage of this “Master’s cap”? The answer is: probably. The existing regulation is that a foreign worker must have an advanced U.S. degree “at the time of filing the I-129 petition”. Since the applicant has 90 days to submit the I-129 petition after the H-1B is selected, if the selected employee is expected to obtain a master’s degree or above in the United States within 90 days after the lottery, he/she can participate in the lottery in March as a person with an advanced U.S. degree to increase the odds of being selected.

Don’t be too disappointed if your H-1B registration is not selected at the end of March, because you might have a second, or even a third, draw like last year. According to last year’s experience, due to the epidemic and other reasons, some employers did not submit I-129 applications even after their H-1B registrations were selected. By the end of July, there were remaining H-1B visa numbers. As a result, USCIS conducted three draws in total last year.

How can I increase the probability of my application being approved?

If your employer is a large or medium-sized employer, congratulations, your H-1B petition is more likely to be approved. But if your employer is a startup, or a small business with only a few employees, and has never applied for H-1B for any employees, you need to communicate with your lawyer in depth to develop a more comprehensive application plan. For startup employers, in the process of H-1B applications, they often encounter the following issues.

1. Does the employer have the financial capacity to pay the prevailing wages?

According to the relevant H-1B regulations, the H-1B employer must pay its H-1B worker(s) at least the “required” wage which is the higher of the prevailing wage or the employer’s actual wage (in-house wage) for similarly employed workers. The rule is to avoid depressing U.S. wages by hiring foreign workers and to protect foreign workers from exploitation. For startup, many companies have not yet made a profit, and may have not even filed tax returns. Therefore, how to prove the company’s ability to pay is something that companies and lawyers need to discuss. Businesses can demonstrate their financial capability by providing bank account statements which show large amounts of cash, or contracts with third parties that show investors are about to invest or products are about to be sold.

2. Is it necessary for the employer to create the new job?

Business necessity is an issue that is often overlooked by applicants. It will be questionable for a one-man traditional foreign trade company to create a new position of software engineer if its business does not heavily rely on online sales. Although the position of software engineer may meet the requirements of a professional occupation, the immigration officer may think it is not necessary for this company to create a software engineer position, not to mention that this position does not completely match the business needs of the company. If the business is an online seller, it might make sense to have a computer related position. Therefore, how to formulate your job title and job description is also crucial.

At the same time, the USCIS also attaches great importance to whether the employer will have enough work for the H-1B employee after hiring him/her. If the business does not appear to be actively operating, USCIS will assume that the H-1B employee will most likely be benched and therefore will not be able to adequately perform the job functions mentioned in the petition. For startups, using a business plan to draw a promising blueprint is helpful in the success of the H-1B application.

3. Does the H-1B job meet the requirements of the professional occupation?

Whether an H-1B job qualifies for a specialty occupation is the most common reason for USCIS to issue a Request for Evidence (RFE).

According to relevant immigration laws and regulations, a position must meet one of the following conditions to qualify as a professional occupation:

  • A bachelor’s degree or higher or equivalent is usually the minimum entry requirement for the position
  • The degree requirements for the job are industry-wide, or the job is so complex or unique that only individuals with a degree can do it
  • Employers usually require this degree or equivalent
  • The nature of specific duties is so specialized and complex that the knowledge required to perform them is often associated with a bachelor’s degree or higher.

Some seemingly high-level positions, such as CEO and Manager, may not meet the requirements of professional occupations. The nature of these positions depends on the size of the employer and the complexity of the work. For example, according to a 2016 news report, the CEO of The New York Times, Mark Thompson, was using an H-1B visa to work in the United States. Given the fame of The New York Times, it’s not difficult to deduce that the job of CEO should be complex and at least a bachelor’s degree should be required. Therefore, the position of CEO at The New York Times fits the definition of a professional occupation. However, for many “one-person companies”, whether the CEO must have a corresponding undergraduate degree is often examined by the USCIS with a magnifying glass. It is well known that many successful businessmen do not complete their undergraduate studies. Therefore, simply using a high title does not automatically qualify a position as a specialty occupation.

The Law Office of Lu & Associates has a wealth of successful experience in H-1B petitions, especially H-1B petitions for small businesses. If you have any questions about the H-1B visa, please feel free to contact our law firm.

This article is written by the Law Office of Lu & Associates to introduce legal information. The firm is legally established in California, mainly to provide clients with professional services in U.S. immigration law. In view of frequent changes in immigration laws, the information in this article is for reference only and does not represent a specific legal opinion on individual cases. If you are interested in learning more, please contact us. E-mail: info@uslulaw.com; WeChat ID: uslulaw. Welcome to visit www.uslulaw.com.

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