How to Strengthen Worker Visa Applications Amid Growing Scrutiny

H-1B and EB-2 NIW cases have faced more scrutiny in recent months—longer delays, tougher Requests for Evidence, and even unexpected denials. These trends are creating real challenges for companies trying to fill critical roles and for talented professionals eager to contribute their skills in the US.

As global competition for AI and advanced tech talent intensifies, the US risks losing its edge if these barriers persist. Here are practical, experience-based guidance to help employers and professionals navigate these changes and build strong, resilient petitions.

Wage level issues. For tech employers hiring AI-related professionals, eligibility under the H-1B specialty occupation criteria is generally not a major concern, as most applicants possess at least a bachelor’s degree in computer science, data science, electrical engineering, or a related field.

However, careful attention must be paid to wage level selection. Avoid using senior-level job language (e.g., “lead,” “supervise,” “invent,” or “design strategy”) when classifying a position at Wage Level 1.

The US Citizenship and Immigration Services often issues RFEs when a Level 1 wage—which represents an entry-level position requiring close supervision—is paired with a job description that suggests advanced responsibility, independent judgment, or significant prior experience. For example, if the role is described as involving project leadership, staff management, company-wide strategy development, or independent technical decision-making, USCIS may view this as inconsistent with an entry-level designation.

To minimize the risk of RFE or denial, employers should ensure that the wage level and job duties are aligned. If the position is classified at a Level 1 wage, the duties should reflect an entry-level role, such as performing tasks under supervision, assisting senior staff, or applying foundational professional knowledge with limited autonomy.

Involving staffing companies. Staffing companies are often used to place tech talent, including AI professionals, at third-party client sites. These cases receive heightened USCIS scrutiny because it can be unclear who actually directs and supervises the employee when they work offsite. USCIS requires that the petitioner—the staffing company—maintain real control over the employee’s work, pay, and job responsibilities, rather than acting as a pass-through to a client. Without this control, the employer-employee relationship may not meet H-1B requirements, raising concerns that the visa is being used to place workers without a bona fide employer supervising them.

To show there is a valid employer-employee relationship, provide a master service agreement, work order, or statement of work. Include documentation showing that the staffing company pays the employee and maintains the ability to hire, fire, and supervise the employee.

Start-up companies. When filing an H-1B petition for a startup company—self-sponsored or not—it’s common for USCIS to issue a RFE if the business can’t be verified through the Validation Instrument for Business Enterprises system. To avoid such RFEs, the petitioner should include comprehensive documentation that establishes the legitimacy and active operation of the business.

In addition to the standard required documents—such as the Certificate of Incorporation or Formation, business license, and IRS-issued EIN letter—it’s recommended to provide supplemental evidence, including a commercial lease agreement to confirm the business location; interior and exterior photos of the office showing the company name, workstations, and equipment; utility bills; client contracts or service agreements; and marketing materials such as website screenshots or brochures.

Together, these materials demonstrate that the company genuinely exists and is actively engaged in business operations, which is critical to satisfying USCIS requirements for H-1B eligibility.

Remote work considerations. Given the increasing prevalence of remote work in the tech industry, especially among H-1B employees, it’s essential to clearly demonstrate how the employer will maintain control and supervision over the beneficiary’s work. To assure USCIS of a valid employer-employee relationship, the petition should include a statement outlining how oversight will be exercised in the remote arrangement.

Including such a statement reinforces the employer’s right to control the terms and conditions of the beneficiary’s employment—an essential element in establishing a valid H-1B employer-employee relationship, even in a remote work environment.

Strong petition components. For National Interest Waiver petitions in tech fields, it’s essential to demonstrate not just the technical sophistication or novelty of your invention, but how it directly contributes to matters of national importance.

USCIS frequently issues RFEs requesting concrete evidence of your direct involvement in projects that are substantial and of national importance. To demonstrate active engagement in your proposal, it’s essential to provide strong documentation. This may include signed contracts or grant award letters—particularly from US government agencies—along with official project assignments or scopes of work outlining your responsibilities.

Additional supporting evidence may consist of internal emails or memos confirming your role, progress reports submitted to funding agencies, timesheets or billing records, and project deliverables bearing your name. These materials collectively demonstrate that your proposed work isn’t speculative, but is already in progress and contributing to nationally significant objectives.

By proactively addressing these critical areas and providing concrete documentation, employers and professionals can strengthen their petitions, reduce the risk of RFEs, and help the US remain competitive for global tech talent and innovation.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Wen Luo, JD, is managing attorney at Luo & Associates Law Group, specializing in US immigration law with a focus on employment, business, and family-based petitions.

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