Cap Exempt H-1B For A Software Engineer With A Master’s Degree

Securing A Cap Exempt H1B For A Software Engineer

Full Video Transcript

The client has a master’s in engineering, but the company that he wants to work for is a software developing company. A software developing company doesn’t need somebody with a mechanical engineering background, and USCIS requires you to prove, well you studied this, so you need to work in this field that has a specialty occupation. 

But we wanted to use the master’s degree because it’s cap, right? You get a better chance. And so what do you do? Do you use the undergrad degree that’s much more fitting to the company, but then the chance of selection is a lot less? 

Or to use the master’s degree but somehow maneuver and argue that a mechanical engineer needs to be at a software company? Or do you argue that a mechanical engineer has the skill sets to be a software developer at this software developing company? Let me share with you what we did and how we got this case approved. Let’s go.

Hi everyone, my name is Joseph. I’m the managing partner here at Tsang & Associates where we solve legal problems with creative solutions. The legal problem in this case is that we just don’t know exactly what’s the best argument. All of them could work. They each have their pros and cons. The downside of using your undergrad degree is the selection process is less; you might not be able to qualify. So there’s a fear there, and in H1B applications, the biggest hurdle probably is the selection. 

So after a long discussion, we decided not to do the H1B using the undergrad degree. Then now we’re stuck with here’s a mechanical engineering degree and then at a software company. How do you make this match, right? Software developers just don’t need in-depth hardware experience and knowledge. So everything that they learned, yeah, it’s kind of useless right at this company. If you just presented that to USCIS, they probably would just deny it, right? 

And so now the company really wants to hire this client. This client really wants to work at this company. So how do we make it work, right? Do we create a new business plan saying, well, now the company is moving towards mechanical engineering and needs this? Sure, if the company does have it, they could, but this is a large company that’s on the stock exchange. It’s really hard to get them to change courses, right? They just needed the software developer. And so if you can’t make it work, then we just can’t hire you. 

So everybody was really stressed, but we were able to go through every single class, transcript, homework assignment, final, and really prove that this mechanical engineer had the skills and ability to perform at or above a normal software engineer. 

Now, we couldn’t go too far because it was only a wage level two, you know? It’s not like the highest wage level, so we didn’t want to say he has a master’s degree from an elite university, one of the IVs, and now they’re going to be able to work at a very, very high level. That’s hard, right? Because it’s only a wage level two. They’re not granted a huge salary. So it’s between, you know, the HR department only willing to offer a wage level two, the company not willing to create a new position for a mechanical engineer, both of those which would have just easily solved the problem but they can’t. So we’re limited to having to work with what we got. We were able to document everything and really focus on the benefit that this company, this, you know, again, super large company is able to benefit the rest of the world and how his role in this company on these projects is able to make the United States more competitive. 

And the officer reviewed everything and was happy and the case was approved without a request for evidence. 

Making arguments and putting things together is not hard, making the decision on what to do is the hard part. We could be pushing the HR department and asking them to up the wage level. Maybe the HR director will just say no, forget this, you know, like it’s just way too complicated to deal with immigration, let’s just end it, right? And then the client would not have a job. That would be terrible. 

You work with what you got. You push in the areas that you know can succeed and you can negotiate the points where you can potentially get. We worked with the client very intimately, we got all the transcripts, we’re able to prove and enlist the client to help show, well, do you have the skill sets to be a software developer, right? This is what other software developers do, how much of it can you do? And he was able to persuade us and present all the documents. 

These people are so smart and so capable, so if they are on your team, I mean, who’s more committed to their own immigration paperwork than the client themselves, right? Enlist them. I don’t know how many law firms don’t do this, and I always recommend agents, I recommend other law firms, like your client is your ally. Enlist them on your team. Help them help you, help them help you, help them. 

If you have any questions about H1B, about changing job titles, about your wage level, how high, how low, feel free to give us a call, we’d love to talk to you, brainstorm, give suggestions, we’re here to help. Take care, bye-bye.


Determining how to present an H-1B case is one of the most important and challenging parts of filing an H-1B application when a case can apply for H-1B status in multiple ways. In the case of this H1B for a beneficiary with a master’s in engineering we had to determine how to argue the case. Would it be better to use the regular H1B cap or apply for the cap exempt H1B for those who have earned a master’s degree or higher? In this case the beneficiary could submit an application under either method.




In this case we were working directly with the H-1B applicant who wanted to work for a large software development company. The company wanted to hire an this client as a software developer on their team. However, the beneficiary, our client, had a bachelor’s degree that aligned more closely with the position and a master’s degree in mechanical engineering. We were working with the HR department of the company on this H-1B case and we were working closely with the beneficiary of this H-1B visa to determine the best method to secure an H-1B for a master of engineering.

To get to know this case better, it’s important to understand that the H-1B petition is typically subject to a cap, a limit, on the number of beneficiaries who can receive this visa each year. However, not all H-1B petitions are subject to this cap. There is a separate allotment of H-1Bs, known as H-1B1, set aside for Chilean and Singaporean citizens each year, and there is a separate allotment of cap exempt H-1Bs available for beneficiaries who have earned the US equivalent of a Master’s degree or higher each year. You can learn more about the H-1B cap on the USCIS website.



The greatest challenge in this H-1B case for a software engineer was determining the method of petitioning that would result in the successful application of the H-1B petition.

The first option we had was to apply for the regular cap using the beneficiary’s Bachelor’s degree, which was more closely related to the position of software enginer; however, this option, being subject to the cap, made it likely that the petition would not be selected, simply because of the cap limit.


The second option was to apply for the H-1B under the cap-exemption for higher degree levels. This would make it more likely that the client was selected for the H-1B program, but, the downside was that the master’s degree was in mechanical engineering, not in software engineering. This meant we would need to have a very clear plan to explain how the master’s in mechanical engineering applied directly to this position and that the beneficiary possessed all of the specialty skills and knowledge to apply for the software engineering position. 


Both options had their pros and cons. In the end we decided to apply for a cap exempt H-1B for this software engineer. One of the hardest parts about an H-1B visa is often the cap selection, because there are only a limited number available and so many people applying, the selection process is often the most challenging part of the process. By applying under the cap-exemption, we determined we should improve this beneficiary’s chances of being selected and being able to apply for H-1B status.



Demonstrating the Beneficiary’s Specialized Skills


To be successful in this case we had to prove the beneficiary met all the H1B requirements as we would in any H-1B case: the specialized nature of the position and reason for the degree requirement, the beneficiary’s qualifications for the position, that this degree requirement is common for this position in this industry and that the sponsoring employer requires this degree or its equivalent for this position, and the corresponding wage level. 


The largest hurdle was making sure that we made it clear how the master’s degree in mechanical engineering had prepared this H1B beneficiary with all of the specialized skills and knowledge required for a software engineer. To do so, we went through every single class, transcript, homework assignment, final to provide evidence of exactly how this education in mechanical engineering applied directly to performing the job at or above a normal software engineer.


Working Closely With The H-1B Beneficiary


To create the best argument possible in this case, the H-1B beneficiary was involved in providing information and showing us how the training and skills he had were a match for the software engineering job. This was a critical element to success. He had so much knowledge about the things he learned and the information he needed to be successful in the new position and this involvement helped to build his case for a successful result.




After submitting the H1B petition, it was a success. We were able to help this beneficiary and the HR department at his sponsoring organization to secure the cap exempt H-1B for this software engineer without a request for evidence (RFE).




No matter what type of case you are working on, we always encourage our attorneys to work closely with our clients. Clients are so smart and so capable, so if they are on your team, who would be more committed to their own immigration paperwork than the client themselves? If you are a client, work with your immigration team. You have so many details and all the information needed to better argue your case. When a client comes to us at Tsang & Associates, we work with them to create their case strategy and gather all the supporting information, which creates a greater chance of success.

If you need assistance with an H-1B petition, whether you are applying under the regular H-1B cap, under an H-1B cap exemption or you need help deciding which option is best in your case, we would love to help. You can learn more about our H-1B legal services or contact us with any questions and to discuss your case.


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