H-1B Cap Software Engineer Approval — FY2027 Lottery Selection and Completing the Four Specialty Occupation Prongs

IMMIGRATION LAW · SONG LAW FIRM SUCCESS STORY

Client Profile

• Nationality: Korean, late 20s (anonymized).
• Education: bachelor's in computer science (Seoul) plus a US STEM master's from an NJ university.
• Prior visa history: F-1 student visa followed by 12 months of OPT and now on a STEM OPT 24-month extension.
• Prospective employer: mid-sized software company in NJ, position: Software Engineer II.
• Compensation offer: $115,000 (above prevailing wage Level II).

Case Background

The client's OPT was three months from expiration when the FY2027 H-1B lottery (registered in March 2026) selected the beneficiary. I-129 preparation began in April, with cap-subject H-1B start scheduled for October 1. FY2027 begins October 1, 2026. The I-129 had to be filed within 90 days of selection, and STEM OPT expiration fell only weeks after selection, so a seamless transition without a status gap was required.

Legal Issues

H-1B is governed by INA §101(a)(15)(H)(i)(b) and 8 CFR §214.2(h)(4). The specialty occupation four-prong test must be met:

• Prong 1: the position typically requires at least a bachelor's degree as an industry-wide standard.
• Prong 2: similar employers require a bachelor's or higher for the position.
• Prong 3: the employer has a track record of requiring a bachelor's or higher for the position.
• Prong 4: the position is sufficiently specialized and complex that bachelor's-level knowledge is required.

Innova Solutions v. Baran, 983 F.3d 428 (9th Cir. 2020) and related case law held that where the OOH entry states a bachelor's is "typically needed," prong 1 is satisfied.

Song Law Firm Strategy

Song Law Firm worked back from the STEM OPT expiration date to set the following plan.

• LCA (ETA Form 9035): confirmed the Bergen County, NJ prevailing wage Level II ($108,000) was below the offer ($115,000).
• Employer specialty documentation: 30 job postings and employment agreements over the prior five years showing the employer requires at least a bachelor's for SWE roles.
• Position specialty: mapped the job description to OOH "Software Developers" (15-1252) to establish the bachelor's is "typically needed."
• Beneficiary qualifications: original bachelor's and master's diplomas plus a WES credential evaluation for the Korean degree.
• Employer-employee relationship: right-to-control evidence including performance review process, project assignment, and HR management.
• Petition timing: filed 45 days before STEM OPT expiration to trigger cap-gap and produce an automatic October 1 H-1B start.

Process

• FY2027 lottery registration (early March 2026).
• Selection notice (late March 2026).
• I-129 prepared and filed (May 2026, premium processing $2,805).
• Premium approval within 15 days (early June 2026).
• H-1B validity: October 1, 2026 through September 30, 2029 (three years).
• OPT STEM expiration (September 30, 2026) transitioned into H-1B start (October 1, 2026) with no gap.

Result

• H-1B cap I-129 approved.
• October 1 start, three-year validity. H-1B can be extended to six years total, and beyond six years while an I-140 remains pending.
• Path to permanent residence in progress; the employer will sponsor an EB-2 or EB-3 PERM.
• Client and H-4 spouse have secure status.

Lessons

• The FY lottery registration ($10) must be filed each March; HR and immigration counsel need to coordinate in advance.
• The specialty occupation four-prong test turns on how well the job description maps to the OOH.
• Prevailing wage level sets the floor. Level II or higher offers approve more readily than Level I entry-level offers.
• Cap-gap eliminates the STEM OPT to H-1B gap when timing is right.
• H-1B cases at NJ and NY IT employers recur every March; preparation for lottery season must start months in advance.