Common Problems with H-1B Cap Petitions

Last Updated on November 27, 2023

The cap-subject H-1B visa season is a busy time of year. We recommend getting started on your H-1B recruiting activities to jump-start the process as early as possible. H-1B deadlines start in March each year, and you’ll want to make sure 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 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.


Problems with H-1B visa applications - education

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

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 Evidence (RFEs) are issued when an officer has a question about a petition and needs further information for application processing. Questions asked in RFEs are very diverse, as they can ask for 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, including 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.

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