H-1B Petition For A New Position At A Small Company

H-1B Petition For A New Position At A 10-Person Company

Nationality: Chinese
Applicant: Import/Export Trading Company
Beneficiary: Ms. Qi
Applying For: H-1B visa
Position: Engineer
Timeline:
03/31/2019 Filing H-1B Petition
04/01/2019 Immigration Intake
07/26/2019 Case successfully approved with no RFE

Challenges Of This H-1B Petition For A New Position:

– The small size of the U.S. employer, with only 10 employees
– The employer, as an import/export trading company, had never recruited staff for the position of engineer before and lacked a clear development plan for the position
– The U.S. company was only established in 2016 and was still in the early stages of development with losses in its financial statements
– The beneficiary’s low salary, which is at Level 1 wage, is one of the most common reasons for requests for evidence by USCIS
– USCIS has become more stringent in its review criteria for all H-1B petitions

 

BACKGROUND OF THIS H-1B PETITION FOR A NEW POSITION


Ms. Qi graduated two years ago as an engineering graduate with a three-year STEM OPT and started working for this import/export trading company last year. The company has been interested in keeping up with the pace of technological development in the market and exploring new markets in the field of engineering but struggled to find suitable candidates. Ms. Qi joined the company to fill this gap.

As the company’s only engineer, she shoulders a lot of responsibility and needs to devote time and energy to the development of new products in the long term. So, after some discussion the company decided to apply for Ms. Qi’s H-1B this year and was referred by a colleague to Tsang & Associates for assistance preparing their H-1B petition for the new position.

Objectively speaking, Ms. Qi’s application was not satisfactory. Although her major and position were linked, under the influence of Trump’s strict immigration policy, USCIS has become more and more stringent in processing work visas, and Ms. Qi’s company’s field, size, profitability, and her salary level could all be factors that triggered a supplemental application. Therefore, our H-1B team went into great detail preparing a full set of H-1B petition documents to help her secure her visa.


KEYS TO SUCCESS FOR THIS H-1B PETITION FOR A NEW POSITION


1. Proving All Four Basic Conditions To Show The New Position Was A Specialty Occupation
As things stand, “specialty occupation” has become the primary trigger for H-1B petitions to be filed. The law requires that the petition meet just one of the four basic requirements, if it does the petition is considered to have passed. However, as USCIS has become more meticulous and rigorous in its review, it was critical that the employer’s letter of support provide a strong and reasonable argument that the beneficiary met all four of the following requirements.


“A bachelor’s degree or higher is a basic requirement for this position”: By submitting the official Department of Labor Occupational Outlook Handbook, as well as data from USCIS’s commonly used data in O*Net, we proved that Ms. Qi’s position as an engineer had a high threshold and required at least a bachelor’s degree as a foundation.


“Other similar positions in the same industry require a bachelor’s degree or higher”: To meet this requirement of a specialty occupation, our legal team at Tsang & Associates conducted an extensive search of job postings in the industry. After researching the most valuable peer-to-peer job advertisements, we were able to demonstrate that other firms would have the same requirements and conditions for this new position.

Even though Ms. Qi’s company had never hired an engineer, all of its other employees have a bachelor’s degree or higher, which proves that Ms. Qi’s employer has its own hiring guidelines and required at least a bachelor’s degree for all positions. Even though Ms. Qi’s company has never hired an engineer, all other employees at the company have a bachelor’s degree or higher.


“The position is highly specialized and complex, and requires the expertise of a bachelor’s degree or higher”: Through interviews with the firm’s principals and Ms. Qi herself, our team gained a better understanding of Ms. Qi’s daily duties and development. We assisted the employer in describing Ms. Qi’s job tasks in a letter of support, and provided detailed explanations for each of the duties, demonstrating that this is a complex but specialized position requiring a high level of education.

2. Organizing The Supporting Documents In Three Parts
When we submitted the supporting documents for this H-1B petition for a new position at the company, we organized the supporting documentation from three different perspectives: company, job position, and individual.


Company: We assisted Ms. Qi’s employer in compiling relevant documents to send to USCIS to prove that the company has been operating legally and continuously. Even though the tax returns in recent years were not satisfactory, our legal team at Tsang & Associates took care to submit additional internal financial statements such as balance sheets to prove that the employer’s losses were within reasonable control as a start-up company.


Job Position: In this H-1B visa case, just submitting the official information from the Department of Labor and the Immigration Bureau was not enough. To eliminate the possible adverse effects of low pay (Level 1 Wage) for this position, we filtered and organized the job information after the summary into a table, by comparing the way same size companies in the industry treat similar positions and also pay the same level of salary, so that the Immigration Bureau could clearly understand that Ms. Qi was not cheap foreign labor.


Individual: By submitting Ms. Qi’s academic certificates, transcripts, resume and other data, we clearly proved that she had excellent qualifications and was a good choice for the position. In addition, under the influence of Trump’s new immigration policy, immigration officers are particularly concerned about how the beneficiary maintains legal status in the U.S. Therefore, submitting a valid OPT card, passport, visa, and I-94 entry/exit record was also an essential part of the personal data.

3. Professional Legal Teams’s Review & Involvement
Each company’s operations are different, and each beneficiary’s professional qualifications come from different fields. At Tsang & Associates, we take responsibility for each case we work on, abandoning the templated, assembly-line approach and developing a petition that is tailored to the specific circumstances of each client.

From the time Ms. Qi’s employer entrusted us with the H-1B petition for the new position, our attorneys specializing in professional immigration led the case team every step of the way, from discussing the appropriate position and salary level, to providing document lists and legal advice, to finalizing the delivery strategy. This involvement means our immigration attorneys are familiar with the case, understand the client, and strive to ensure the highest quality of delivery.

OUTCOME OF THIS H1-B PETITION FOR A NEW POSITION AT A SMALL BUSINESS


Tsang & Associates sent Ms. Qi’s H-1B petition for a new position by FEDEX on March 31, 2019, and received the approval news from USCIS on July 26, with no addendum. The U.S. employer and Ms. Qi were very excited to learn the good news and thanked us for all of our efforts in preparing the visa application over the past few months. Our professional service and rigorous work style also made this employer willing to entrust Ms. Qi’s future EB-2 green card case to our legal team.

At this stage, the H-1B review is gradually tightening, and the H-1B filing rate in 2019 is much higher than last year’s. Specialty occupation is still the most important factor that triggers H-1B filings, and many applicants are suffering as a result. If you have any questions about this, please feel free to contact us. We are experienced in handling H-1B visa applications, whether you are applying for the first time, switching companies, or applying for an extension, we can provide you with professional advice and comprehensive H-1B visa services according to your situation.

*To protect customer privacy, customer names are pseudonyms.

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