Immigration

Srinivasa Reddy Kandi: How to Establish H-1B Visa Approval Following the January 17th Memo and Mitigate the Risk of an RFE

February, 08, 2025-10:45

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How to Establish H-1B Visa Approval Following the January 17th Memo and Mitigate the Risk of an RFE:

Achieving a successful H-1B CAP approval under the H-1B Modernization Final Rule (effective January 17, 2025) necessitates a thoroughly documented petition that effectively illustrates the specialty occupation aspect of the position and the qualifications of the beneficiary. Below are essential steps to validate the specialty occupation, enhance the H-1B petition, and reduce the likelihood of receiving a Request for Evidence (RFE).

1. Engage a Skilled H-1B Immigration Attorney:
The foremost and most vital step is to engage a skilled business immigration attorney with expertise in H-1B visas. An experienced attorney will ensure that the petition is accurately filed, complies with regulatory standards, and is supported by adequate evidence to prevent RFEs and denials.

2. Establish a Clear Connection Between the Position and the Beneficiary's Education & Experience:
USCIS mandates evidence that the offered position necessitates specialized knowledge and a bachelor's degree (or higher) in a relevant field of study. To satisfy this requirement:
• The job title and responsibilities should align with a degree in a specialized area (for instance, a Software Developer position requires a degree in Computer Science, Software Engineering, or a closely related discipline).
• If the degree is in an unrelated field, provide expert opinion letters or evaluations of work experience to demonstrate how the beneficiary's education and previous experience qualify them for the position.

3. Confirm the Job's Existence Either In-House or at a Client Location:
USCIS closely examines whether an H-1B employer genuinely has work available for the beneficiary at the time of filing. To verify the availability of work, the employer must present:
• In-House Employment: If the position is within the petitioner's organization, provide organizational charts, project descriptions, work assignments, and payroll documentation.

4. Ensure Adherence to the H-1B Modernization Final Rule:
In accordance with the H-1B Modernization Final Rule, petitioners are required to demonstrate compliance with the revised criteria for specialty occupations:
A. Definition of Specialty Occupation:
• The position of Software Developer is recognized as a specialty occupation due to:
• The necessity for specialized knowledge.
• A minimum of a bachelor's degree (or higher) in a relevant discipline (such as Computer Science or Information Technology) is required for this role.
• The responsibilities associated with the position are consistent with industry standards and the requirements outlined in the Department of Labor's Occupational Outlook Handbook (OOH).
B. Authentic Job Offer:
• The employer must establish that the job offer is legitimate and not speculative.
• Supporting documentation includes:
• An offer letter that outlines the job responsibilities and necessary qualifications.
• An employment agreement with the beneficiary.
• Documentation of projects that confirm the availability of work as of the requested H-1B start date.
• Additional evidence such as contracts, project statements, and work assignments (included as Exhibit D).
C. Compliance with Labor Condition Application (LCA):
• A certified LCA from the Department of Labor (DOL) must correspond with the details of the H-1B petition (including job title, location, salary, and SOC code).
• The LCA ensures that the employer meets wage and working condition standards (included as Exhibit C).
D. Employer's Legal Status and Financial Capability:
• USCIS may require proof that the H-1B petitioner is a legitimate U.S. employer and has the financial means to pay the offered wage.
• Supporting documentation may include:
• Company registration documents (state incorporation papers).
• Business tax returns, bank statements, or financial statements.
• Employer identification number (EIN) and lease agreements (included as Exhibit E).
E. Deference Policy – Requesting USCIS to Honor Previous Approvals:
• If a prior H-1B petition for the same employer and beneficiary was approved, request that USCIS defer to its earlier determinations.
- Confirm that the job position and degree area correspond with a specialty occupation.
- Supply documentation that verifies job availability, whether on-site or at a client location.
- Present a compliant Labor Condition Application (LCA) along with proof of the employer's legitimacy.
- Seek USCIS deference for previous approvals when relevant.

Following these measures will enhance the chances of H-1B approval and minimize the potential for a Request for Evidence (RFE).

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.