Selected in the H-1B Lottery? Here's How to Ensure Your Visa Gets Approved

 

To maximize your chances of H-1B approval and prevent potential denials, consider these five essential steps:

1. Correct SOC (Standard Occupational Classification) Code: The job title and duties listed in the H-1B petition must align with the correct SOC code on the Labor Condition Application (LCA). A mismatch can lead to denials, as it may appear that the job does not qualify as a specialty occupation or that the wrong wage level has been assigned.
2. Appropriate Qualification and Salary Match: Ensure that the qualifications required for the job match the educational and professional experience of the H-1B beneficiary. The offered salary must meet or exceed the prevailing wage for the occupation and region, as determined by the Department of Labor.
3. Maintain Documentation for Specialty Occupation: Provide detailed job descriptions and requisite qualification documents to prove that the position qualifies as a specialty occupation. This means the role should require a bachelor's degree or higher in a specific field of study.
4. Employer-Employee Relationship: Clearly demonstrate the employer-employee relationship, especially if the beneficiary will work at a third-party site. Include contracts, work orders, and a detailed letter from the end client outlining the professional duties and supervision arrangements.
5. Preparation for Potential RFEs (Requests for Evidence): Be prepared to respond promptly and comprehensively to any RFEs issued by USCIS. Common RFE issues might include proving the specialty nature of the occupation or the beneficiary's qualifications.

 

Successfully navigating the H-1B visa process requires careful planning, attention to detail, and expert legal guidance. By selecting a specialized law firm and meticulously preparing your application, you can significantly enhance your chances of obtaining an H-1B visa and avoid common pitfalls that lead to denials. Always stay proactive, well-informed, and engaged throughout the process.

According to the latest update from the State Department's May Visa Bulletin, there will be no movement in the principal employment-based (EB) categories this month. U.S. Citizenship and Immigration Services (USCIS) has confirmed that it will honor the final action dates for these EB categories in the upcoming month. This static movement affects all main employment-based categories, which include EB-1, EB-2, and EB-3 visas. Applicants should adjust their plans accordingly and prepare for delays. Our team remains ready to assist with any concerns or adjustments needed in response to this update.

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Self-Employment Opportunities for F-1 OPT Students

 

An important reminder for F-1 visa holders engaged in Optional Practical Training (OPT): self-employment is a viable option to fulfill your employment requirements during the first year of OPT.

 

This allows you to engage in business activities related to your degree program, provided that you actively manage your business and work at least 20 hours per week. Please note that self-employment is not permitted during the 24-month STEM OPT extension period. Due to the close scrutiny by ICE and USCIS, we advise keeping detailed records of your business activities and consulting with an immigration attorney to ensure compliance.

USCIS has issued new policy guidance incorporating the Department of Labor's (DOL) definition of “science or art” for Schedule A, Group II cases. This definition applies to certain EB-2 and EB-3 petitions, particularly impacting beneficiaries with exceptional ability in the sciences or arts.

 

The DOL defines these fields as areas of knowledge or skill with specialized courses leading to a degree. This update is now part of the USCIS Policy Manual and is effective immediately, aligning more closely with DOL standards and affecting how labor certifications are adjudicated.

Starting April 23, USCIS will implement new auditing standards for EB-5 Regional Centers as mandated by the EB-5 Reform and Integrity Act of 2022. Regional Centers will be audited at least once every five years to ensure compliance with the requirements of the EB-5 program. Audits will follow the Generally Accepted Government Auditing Standards (Yellow Book) and will assess the flow of immigrant investor capital among other factors. Noncompliance could lead to termination of the Regional Center's designation.

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We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.