An approved occupation requires a minimum of a bachelor’s degree. The H-1B is also limited by a cap of 85,000. This includes 20,000 of which are solely dedicated to individuals with a master’s degree or higher.
Though with all these restrictions, our law firm was able to receive H-1B visa approval for a business development specialist working for a small start-up company.
Our client was a foreign national who sought employment in an e-commerce start-up company that had only been incorporated in 2012.
The client’s case opens up complications due to three occurrences:
- No prior company tax forms
- No specific salary or employee records
- The Marketing Research Analyst position is not typically considered a “specialty occupation”
- With no previous tax forms to predict future revenue growth, it was a complex case to process. The USCIS prefers to view documentation of the company’s history and progress over the years. This is conducted in order to confirm a company’s financial stability and success. Without financial proof, the employer was required to provide the most accurate projections possible in which we could present to USCIS.
- Specific salary records are important for an H-1B case, because the USCIS wants to determine if the company qualifies as a liable business entity. Since the company has not previously employed a Business Development Specialist, the USCIS questions if the company has made a bonafide offer of employment. There is technically no prior evidence of the company’s ability to pay the foreign national.
- A marketing research analyst position is not typically considered a H-1B “specialty occupation”. Generally, the positions that are granted H-1B status include: accountants, architects, dietitians, economists, engineers, lawyers, medical technologists, professors, physicians, teachers, and technical professionals.
How We Assisted Our Client:
While there were these challenges, our leading attorney, Shilpa Malik, was able to explain the case to the USCIS by providing evidence of how the position would qualify as a specialty occupation. Our law firm highlighted the nature of the employer’s business and the specific duties that the beneficiary would be performing as a business development specialist, which also requires a minimum of a bachelor’s degree in a related field. We submitted examples of similarly situated companies that often require a person to have a bachelor’s degree to qualify for the position. The challenge of the company being a start-up with less than 5 employees was met by proving that there was an existing bonafide employment opportunity and the beneficiary would be performing the specialized duties relating to the position.
If you are in a situation similar or if you are facing challenges regarding your H-1B petition through a start-up or a small company, please contact us for a consultation. Our experienced immigration attorneys are capable of helping clients with documentation, legal representation, and filing requests.