Common Problems with H-1B Cap Petitions

January 12, 2018 Chelsea Iversen

Cap-subject H-1B visa season is upon us. We recommend getting started on your H-1B recruiting activities to jump-start the process if you haven’t already. Within a few short months, you’ll be facing deadlines, and with a process that’s more scrutinized than it’s been in years past, you’ll want all the time you can to get everything buttoned up perfectly. Problems with H-1B cap petitions won’t fly with authorities, who are looking for very specific information.

What are some typical problems with H-1B cap petitions?

Some of the most common issues with the H-1B cap petition are not the small details that people leave out, but those embedded within the core of the petition. While the petition may seem flawless on the outside, there could be underlying problems.

Here are some of the most common problems we've seen:

Job description

Problem with H-1B visa applications - job description

When you talk about the open position and the associated responsibilities, are you being perfectly clear? The adjudicator needs to understand what the candidate is going to do on a regular basis so he or she can fit that person into one of the occupational categories specific to the H-1B visa.

Education

Problems with H-1B visa applications - education

Sometimes an employee’s degree may not clearly be related to the job description. However, in order to be accepted, the employee’s field of study has to correlate to the offered position. If these two things don’t clearly match make sure you provide your attorney with a reasonable explanation of why a degree in this particular field is needed for the seemingly unrelated job, or the adjudication of the petition may face avoidable unnecessary delays.

Prevailing wage

Problems with H-1B visa applications - prevailing wage

When a foreign national employee begins the new period of H-1B status the employer must pay the required wage which is the higher of the Prevailing Wage, as stated on the LCA, or the actual in-house wage for similarly employed workers.

The Prevailing Wage is determined by the location of the worksite, the nature of the work, and the position itself – as they relate to other salaries for employees with the same defining characteristics. Make sure you do your due diligence beforehand to understand the Department of Labor’s standards for the local market before establishing the rate of pay for the position.

Requests for evidence

Problems with H-1B visa applications

You still might face challenges with H-1B cap petitions even after they’re filed and accepted by USCIS.

Requests for Additional Evidence (RFEs) are issued any time an officer has a question about a petition and seeks further information to complete a petition. Questions asked in RFEs are very diverse as they can request any information the officer deems relevant in making a decision about whether your petition can be approved or not.

There are, however, common themes frequently seen in RFEs which include why a job is considered a specialty occupation, why the particular wage level was chosen and questions relating to frequent travel or offsite employment.

Are you ready for this year’s H-1B cap season? Watch the first part of our H-1B Cap Prep Series to learn how to prepare for FY 2020 H-1B Cap Season.

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