The employer seeking to sponsor an H1B visa was nontraditional and had never previously sponsored a visa. Further, the position offered by the employer had been newly created and without a predecessor. The prospective visa-holder had two college degrees that were not aligned with the position. As such, satisfying the legal standard set for a bonafide position would be challenging–the USCIS wants to make sure that the need for the worker is bonafide. In this case, that could mean the USCIS wants evidence the position was not made fraudulently for the prospective visa-holder.
Sure enough, we received a very lengthy Request for Evidence. To top it off, however, the prospective H1B visa-holder already had an H1 visa set to expire. We had only a few weeks to file a cap-exempt case.
The solution, in this case, was three-fold. First, we had to determine whether to file the H1B petition in the regular quota or if it qualified as a cap-exempt situation. Uncertain if the petition would be accepted in the lottery, we filed the petition as a cap-exempt petition.
Second, we had to establish a bonafide need for the worker in this newly created position by the employer. The petitioner had been interning with the employer previously, and that’s why they both knew the petitioner could handle the new position. We reviewed the employer’s management structure, financial antecedents, current goals, and future objectives. We also considered the petitioner’s skills and experience. We helped establish clear roles and responsibilities of the position, being certain to align the position with the petitioner’s specialized knowledge and skills.
Third, we established solid evidence to prove the bonafide position required specialized skills and the petitioner satisfied the requirements. The prospective H1B petitioner was granted with a three-year approval from the USCIS.