10 Tips for Filing CAP H-1B Petitions

by Attorney Thomas Allen

As I write this column, I suspect there are hundreds and thousands of CEOs and entrepreneurs at this moment who are trying to solve a financing challenge.

Here are 10 very important tips to help you navigate through the perils of the USCIS application process:

  1. Make sure your occupation code (SOC) and the job title are the ones accepted by USCIS as a Specialty Occupation.
  2. The job description should have a very detailed explanation that includes the nature of the project, the position summary, duties, and responsibilities, as well as the percentage of time spent on each job duty. The job offer and job description must both present evidence of why this position requires a minimum of a Bachelor's degree.
  3. The confirmation from the client and the layers (vendors) must clearly state the nature of control the employer has on the beneficiary, and who will supervise the beneficiary.
  4. Your employment contract must show that the employer is in control of the beneficiary's pay, day-to-day management, providing equipment or tools, and has a direct review of the employee.
  5. If the beneficiary is placed at a third party location, include the itinerary with the petition which should include the dates of employment, contact information of the client and the vendors and the name and complete address of the work location.
  6. If the offered position is not directly related to the beneficiary's field of education, please provide a work evaluation from an authorized professor/evaluation agency.
  7. The Client Contract and the Statement of Work should be dated prior to the filing of the Petition. The Statement of Work or the Purchase Order should not have an end date before October 1. The client and the vendor letters should not mention an end date before October 1.
  8. Not all U.S. Master's degree qualifies for the H-1B Master's Cap. Make sure the US Degree was from an accredited University. The U.S. Master's should be obtained from a Public or non-profit university/school.
  9. Make sure the petition is filed with the right Service Center.
  10. Have a qualified Immigration Attorney file your H-1B Petition.

Many denials can be avoided if a qualified attorney prepares the Petition. Having so-called ‘immigration paralegals' prepare your petition may be illegal, and the company may be involved in the aiding and abetting of unauthorized practice of law.