On the eve of H-1B cap season, H-1B petitioners are desperate to get their petitions in for the upcoming lottery. With the chance you’re one of the lucky ones and your petition is selected, the below tips will help to secure an H-1B approval.
USCIS’ current adjudication practices under the “Buy American and Hire American” Executive Order have resulted in countless H-1B petitions being inconsistently adjudicated and improperly denied. According to a the National Foundation for American Policy (NFAP), denial rates for new H-1B petitions for initial employment have increased significantly, rising from 6% in FY 2015 to 24% through the third quarter of FY 2019. As employers and their prospective employees continue to suffer from these unfair adjudication practices, more employers are filing lawsuits in federal courts to have judges review whether USCIS’ decisions were “arbitrary, capricious, an abuse of discretion or otherwise not accordance with the law.”
A recent decision by the United States District Court for the District of Columbia in the case of RELX, Inc., d/b/a LexisNexis USA v. Baran is now a beacon of hope for H-1B petitions that have been wrongfully denied under USCIS’ draconian interpretations. In this case, the court ruled that the amount of evidence that was provided to support the petition more than met the “preponderance of evidence” standard and that USCIS’ decision was not “based on a consideration of the relevant factors” and was “a clear error of judgment.”
Below are four tips we can take from RELX, Inc., d/b/a LexisNexis USA v. Baran and similar cases to put together a strong case to secure an H-1B approval.
- Assign the proper SOC Code: One of the most critical parts of preparing the H-1B petition is designating the proper Standard Occupational Classification (SOC) Code based on the corresponding occupation in the Occupational Outlook Handbook (OOH). The designation of the SOC Code gives the USCIS a general understanding of what the proffered position entails. Because the designation of the SOC Code depends on a variety of factors such as the specific job duties and the educational requirements of the proffered position, it is essential to work together with your immigration counsel to select the most proper and applicable SOC Code for your case.
- Be mindful the specific field(s) of study share the same “body of highly specialized knowledge”: For example, let’s use the position of Software Engineer. The OOH states “a majority of Software Developers have a bachelor’s degree in Computer Science or related field.” Successful arguments can be made for other similar fields of study such as Computer Engineering, Software Engineering, and Electrical Engineering because they all share the same “body of highly specialized knowledge.” However, if your candidate has a bachelor’s degree in Physics and the proffered position is an IT position, USCIS may contend that the study of Physics and Computer Science do not share the same “body of highly specialized knowledge.”
- Supply supporting documents that actually “support” the case: For example, Petitioners planning third-party placements of H-1B employees will be asked to submit contracts confirming the Petitioner will retain the right to control the H-1B employees’ work (i.e., meaning that the Petitioner directs and supervises the Beneficiary, reviews the Beneficiary’s work, and is responsible for the provisions of the Beneficiary’s employment such as setting his/her work schedule, paying their salary, and providing employee benefits). If the supporting documentation says otherwise, USCIS may issue an RFE or denial.
- Write a detailed job description explaining why an applicant needs at least a bachelor’s degree or higher to perform the job duties: Suppose I had to explain what I do as an immigration attorney. In a nutshell, I could say I consult with clients, strategize, write briefs, and prepare and review immigration forms. But that doesn’t help the reader understand what I really do or why the position requires a law degree. For H-1B adjudications, the job descriptions need to be more detailed so that the USCIS officer will understand what the job entails and why a certain bachelor’s degree is required. A better job description would be that “I consult with clients regarding complex immigration matters that require a solid understanding of immigration laws and regulations, evaluate potential options and forms of relief such as A, B and C, strategize with the client on the best options, and when and how to file based on the option chosen…” The best course of action is to explain in great detail the complexities and technicalities required for the performance of the job duties and why an individual would need at least a bachelor’s degree or higher to perform the duties.
In 5th century BC, Sun Tzu, the author of The Art of War, wrote “the general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand.” Many centuries later, this principle still holds true, especially in the preparation of H-1B petitions. The above tips involve “calculations” that will help you prepare the most persuasive case possible to secure an H-1B approval and limit the issuance of an RFE or denial. If you are considering sponsoring an H-1B professional, I encourage you to seek an experienced Foster attorney to help you navigate these complex regulations and procedures.