Last Updated on November 20, 2024
The cap-subject H-1B visa season is a busy time of year. We recommend getting started on your H-1B recruiting activities as early as possible to jump-start the process. H-1B deadlines start in March each year, and you’ll want to submit all your documents on time and as accurately as possible to avoid scrutiny and delays.
What are 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 its core. While the petition may seem flawless, there could be underlying problems.
Here are some of the most common problems we’ve seen:
Job Description
Are you clear when you discuss the open position and its associated responsibilities? The adjudicator needs to understand what the candidate will do regularly so he or she can classify that person as an occupational category specific to the H-1B visa.
Education
Sometimes, an employee’s degree is not clearly related to the job description. However, to accept a petition, the employee’s field of study must correlate to the offered position. If these two things don’t match, explain to your attorney why a degree in this field is needed for the seemingly unrelated job. Otherwise, the adjudication of the petition may face avoidable delays.
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 location of the worksite determines the Prevailing Wage, 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 pay rate for the position.
Requests for Evidence (RFEs)
You still might face challenges with H-1B cap petitions even after they’re filed and accepted by USCIS.
Requests for Evidence (RFEs) are issued when an officer has a question about a petition and needs further information for application processing. Questions in RFEs are very diverse, as they can ask for any information the officer deems relevant in deciding whether your petition can be approved.
However, common themes frequently seen in RFEs 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 our FY 2024 H-1B cap season webinar learn how to prepare for cap season.
