H1B Visa Lawyer: “Self Employment” H1B Visa more Tips and issues to Consider!

We have received an amazing response to our last H1B Self Employment Article and we wanted to follow up with a few more tips as the H1B filing date is just around the corner.

So the bottom line, USCIS regulations require that H-1B classification be accorded a foreign national who will perform services in a specialty occupation. USCIS will not approve an H-1B petition for “speculative employment.” So, to avoid RFEs (Request for Evidence) on these issues for new and smaller company typically formed by a sole investor, it is important to prepare H-1Bs with sufficient financial and other information to show the legitimacy of the company and the need for the H-1B worker. I often include,a copy of the office bank accounts, wire transfers of money deposited in corporate bank accounts, business plans, contracts with U.S. clients, etc.

H1B as the Owner

In most cases, for an owner/beneficiary, the beneficiary will be filling a managerial position for the company. In this situation, it must be proven that the managerial position is a “specialty occupation” requiring the attainment of at least a bachelor’s degree.

Service Center examiners at USCIS may be under the impression that managerial positions do not normally require attainment of a degree. Additionally, general manager positions that could be performed by anyone with managerial experience have been found not to be “professional” because they do not require a specific bachelor’s degree. This is a common recent RFE we have seen a lot in the past 2 H1B filing seasons.

It is therefore critical to the company to describe the duties of the manager in detail to prove the complexity of the duties and/or knowledge required in a specific field to perform the duties. The H-1B is best utilized where the manager has education and experience in either a specific business area such as financial analysis, accounting, etc. or in the subject matter of the product or service provided by the business.

Some officers turn to the Occupational Outlook Handbook to find that a specific degree is not required for the managerial position, again very important to focus the job on a particular area, and not keep it managerial as a general field.

How Big is your Business?

While current H1B regs suggest company size does not matter for the H-1B visa, in reality, often it does. USCIS examiners may question whether the company is large enough and has enough complex activity to support the need for an H-1B worker. A small business with few employees all engaged in work that clearly would not meet the definition of “specialty occupation” may lead a USCIS examiner to conclude that the offered H-1B position is, similarly, not a “specialty occupation,” or that the beneficiary will perform some specialty occupation duties in combination with other non-specialty occupation duties.

Therefore, it is necessary for small businesses to submit substantial evidence about the nature of the business as well as the need for the position, and that it will be filled by a person with a degree. It is important to understand the industry that the H1B worker will be part of, perform the necessary research about similar jobs, and always look for the “hook” to justify the need for the degree.

In reality, we know that USCIS examiners are not consistent. We have filed many similar cases, with similar evidence. Some get immediate approvals, some get RFE’s and others get denied. What we can do is present the H1B petitions in a bullet proof format, over prepared is the keyword this filing season.