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How to Qualify for H-1B Visa Petition (II)

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    2013-01-2523:55:54 #142552
    FYZLaw 99.***.218.100 7145
    How to qualify for H-1B visa petition (II)
    Tao Zhang, Esq.

    For part I of this article please refer to the link:

    III. Petitioned H-1B position must be in employers’ real need
    Especially for small-sized companies, the employers not only need to prove that the petitioned position is a specialty occupation, they also have to prove that the position is essential for their business and that professional knowledge and skills are required to complete the main duties of the job.

    Here is an example. Company A is a small company specialized in import & export business with total five employees. If the position that company A uses to petition for H-1B for its alien employee is computer programmer, even though this position is a specialty occupation and assuming all other conditions can be satisfied as well, the H-1B visa petition might still be denied if company A could not provide sufficient evidence to prove that their business really needs a full-time computer programmer position. However, if the petitioned position is Market Research Analyst instead, it will be much easier for the employer to prove their needs for such a position and would receive the approval of the H-1B visa petition if all the requirements can be met.

    In addition, the employer also needs to prove that the special knowledge and skills are required to complete the major duties of the petitioned position. If the USCIS officer who adjudicates the case believes that a significant part of the job duties actually involved administrative work or works which can be completed without the required special knowledge and skills, the H-1B petition could be denied because the petitioned position is not considered a specialty occupation.
    IV. Whether or not the beneficiary can satisfy the petitioned position’s requirements
    After proving the petitioned position is a specialty occupation that requires a minimum bachelor’s degree, an employer also needs to document that the beneficiary meets the requirements of the position, i.e., the beneficiary has earned a bachelor’s or higher degree required by the petitioned position. If the beneficiary’s degree was granted in a foreign country, we suggest submitting a foreign degree evaluation report issued by a specialized agency along with the petition.

    In our practice, we were often asked this question: if the beneficiary’s major of his/her undergraduate studies is different from that of his Master’s or Ph.D. degree, can he/she still be qualified for a position that is only related to his/her undergraduate major? The answer is Yes. Even though the major required by the petitioned position is different from that of the beneficiary’s Master’s or Ph.D. degree, as long as the beneficiary has earned a Master’s or higher degree from an accredited university of the U.S., the beneficiary is still eligible for the extra 20,000 H-1B quotas set aside for those with a U.S. Master’s or higher degree.

    Even if the H-1B beneficiary’s major is not completely congruent with the major required by the position, if the employer could prove that the beneficiary has taken courses related to the major required for the petitioned position, or has training or related working experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty, the beneficiary can still satisfy the requirement of the petitioned position.

    V. The employer’s financial ability to pay

    We have mentioned before that one of the basic conditions that must be fulfilled for H-1B petition is that the beneficiary’s salary must satisfy the prevailing wage requirement set by DOL. Other than this, the employer also has to prove that they have the financial ability to pay the proffered salary. For companies with more than 100 employees, the CFO’s statement certifying that the company has the financial ability to pay is sufficient to serve to meet the evidentiary requirement. For small size companies, USCIS requires more evidence to show the employers’ financial ability to pay. Such evidence can be the company’s business license, annual and quarterly tax report, independent audit reports, payroll documents, bank statements, and etc.

    A successful H-1B petition needs to at least satisfy the above five basic requirements. The lack of evidences for any of the above five requirements could lead to a denial of the H-1B petition. Especially for those that need to compete for a spot in 2014 H-1B quota, if the original H-1B petition is denied due to the lack of evidence, when he/she is ready for 2nd H-1B filing, it would probably fail because the 2014 H-1B quotas would have been used out and they would have to wait for the next year’s quota starting in next April. In order to avoid such a dilemma, we highly recommend you to get assistance from an experienced immigration attorney with expertise on H-1B cases.

    Tao Zhang, Esq. is a partner of FYZ Law Group LLP (www.fyzlaw.com). She has a lot of experience in professional/business immigration and non-immigration visa, and has represented many employers in their H-1B petition for their alien workers. Right now, if you are considering applying for H-1B and need the help of a knowledgeable lawyer, please contact Tao Zhang, Esq. at: email: tzhang@fyzalw.com; Tel: (630) 577-9060. She will evaluate your case for free.
    We have talked about which employers is H-1B cap exempt. If you aren’t sure if your H-1B petition is cap exempt or not, please see http://workingus.com/v2/gnu/bbs/board.php?bo_table=fyzlaw&wr_id=17. If you have any questions, please contact Attorney Zhang at: email: tzhang@fyzalw.com; Tel: (630) 577-9060.

    FYZ Law Group LLP is a law firm that provides complete immigration services to many educational/research institutions, private companies and individuals. Our lawyers have many years of U.S. immigration services. We specialize in immigrant petitions and non-immigrant visa petitions such as EB-1A， EB-1B， EB-1C, NIW, PERM, H-1B, L-1 and O-1. We have offices in San Francisco Bay area, Chicago, and New York. We are one of the few law firms across the U.S. that specializes in employment-based immigration. Website: http://www.fyzlaw.com Email: @fyzlaw.com">info@fyzlaw.com Tel: 650-312-8668(CA); 630-577-9060(IL); 646-288-7129(NY).
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