January 13

H-1B Visa: Specialty Occupation Criteria

H-1B visas are essential to many U.S. employers. These visas allow employers to fill positions with a shortage of trained domestic professionals. USCIS grants H-1B visas to qualifying persons trained and employed in specialty occupations. Requests for Evidence generally involve whether or not the position meets the criteria of a specialty occupation.

But what is a specialty occupation? According to the Code of Federal Regulation, a specialty occupation requires:

  • Theoretical and practical application of a body of highly specialized knowledge; and
  • Attainment of a bachelor's or higher degree in a specific specialty as a minimum for entry into the occupation.

H-1B jobs have to meet the industry-wide degree requirements, consisting of at least a bachelor's degree or the equivalent. Employers may have to prove that similar-sized companies within the industry require this degree. The petitioner can submit previous and current job postings indicating that the degree is usually needed. Companies need to show that the duties are specialized and complex enough to require the specified degree. 

H-1B Specialty Occupations

Examples of typical specialties requiring H-1B workers include science, technology, engineering, and mathematics (STEM) professions. Most STEM jobs require a minimum of a bachelor's degree and often require advanced degrees.

Careers in business and healthcare can also qualify. Suppose the position is in a profession that requires a license, such as law or medicine. In that case, the beneficiary must obtain that license in the state where they'll be working before petitioning for the visa.

The scope of a specialty occupation includes the definition of professional. The Code of Federal Regulation defines professional work by legal precedent. Factors used to evaluate rather or not a position is professional include:

  • The position's duties and tasks as specified by the H-1B petition and industry documents.
  • Whether or not the position requires a post-second-secondary level of theoretical and applied knowledge.
  • Whether or not the position requires a specific course of study directly related to the job. (General education and liberal arts courses are not sufficient.)

USCIS uses the Department of Labor's Occupational Outlook Handbook (OOH) to determine if the job generally requires a bachelor's degree or equivalent. USCIS looks at whether similar jobs within the industry require a degree. They also assess whether the position's duties are complex enough to require a bachelor's degree or higher. 

In addition to accessing degree requirements, USCIS will use past position announcements, descriptions of the business products and services. They will also consider written expert opinions to determine if the position qualifies as a specialty occupation.

Complex positions often have different job titles with elements from other jobs. However, USCIS focuses on the job duties and not the title. A good practice is to compare specific duties to other recognized positions. Focus on complexities and how the responsibilities require knowledge from a particular degree. The degree should be directly related to the specialty occupation. 

H-1B Education Requirements

If the applicant has a bachelor's degree, they meet minimum standards. While a degree requirement is common other factors can qualify as equivalent for the position. Immigration will accept a 3:1 work to study ratio under 8 C.F.R. §214.2 (h)(4)(iii)(D)(5). Every three years of work experience is equivalent to one academic year at a university.

For example, if the beneficiary has an associate's degree they also need six years of work experience to meet the education requirements.

If the beneficiary doesn't have a bachelor's degree, give the school's name, the credited course work, and time enrolled at the school. Also, give the job titles, industry, and duties of previous employment.

It is wise to have an expert evaluate the work and educational experience. The evaluating expert must show that they have the authority to assess credentials.

Connect the Beneficiary's Degree to the Job Requirements

Demonstrate how the employee's highly specialized knowledge is essential to perform the duties. In the H-1B petition, detail how the specified job relates to the employee's degree. If your employee has the listed degree, say that. If they have a similar degree, demonstrate how their educational background led them to specialized knowledge.

About the author: Jon Velie has practiced Immigration law since 1993. He is CEO of OnlineVisas

Jon is an Amazon number one best-selling author of H-1B Visa: Application & Approval, is regularly covered by major media and has won a number of international awards. Jon was also pivotal in the Cherokee Freedmen Supreme Court case.

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