H-1B visas are granted to qualifying persons trained and employed in specialty occupations. Many of the Requests for Evidence received by over 25% of H-1B petitions involve the question as to 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 highly specialized body of knowledge,
- Attainment of a bachelor’s or higher degree in a specific specialty as a minimum for entry into the occupation.
This typically means that the position requires a bachelor’s degree and that similar positions throughout the industry must require the same or similar degree. Employers may also be requested to prove that similar size companies in your industry require this degree.
The employer can prove the requirement by submitting previous and current job postings indicating that they normally required this degree and that the duties assigned are of a complexity that necessitates a professional who has attained this degree.
Examples of common specialties which require H-1B workers include those professions involving science, technology, engineering, and mathematics or STEM. STEM professions overwhelmingly require a minimum of a bachelor’s degree and often require advanced degrees.
Careers in business and healthcare may also qualify. USCIS reports from Fiscal years 2013 and 2014 showed that most H-1Bs were received for computer related occupations followed by architecture, engineering, surveying, administrative specialties, education, and health care. If the position is in a profession that requires a license such as law or medicine, you must obtain a license in the state where you’ll be working prior to petitioning for the visa. Some states will allow a temporary license.
The scope of a specialty occupation includes the definition of professional. Careers that are considered professional are iterated in the Code of Federal Regulation and defined by legal precedent. Factors used to evaluate rather or not a position is professional include:
- Tasks and demands of the position as specified by the 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 position. (General education and liberal arts courses will not be sufficient.)
USCIS will utilize the Department of Labor’s Occupational Outlook Handbook (OOH) to determine if the petitioner’s position and positions like it generally require a bachelor’s degree or equivalent. It will also be assessed as to if the assigned duties of the position are so complex that they require a bachelor’s degree or higher. Employers in unique or novel industries may face challenges in proving that the position normally requires such specialized training as that few equivalent positions may be available.
In addition to accessing degree requirements, the USCIS will use past position announcements, descriptions of the business products and services, as well as written expert opinions to determine if the position qualifies as a specialty occupation.
Recognizing positions may have different job titles which may have elements from various recognized positions, but USCIS focuses on the duties of the positions and not the title.
A good practice is to compare specific duties to recognized positions focusing on similarities in complexities and how the duties require knowledge from a particular degree.
Meeting the requirement of having a bachelor’s degree can be done several ways. Of course, the first is being the holder of a US bachelor’s degree. Foreign degrees must be deemed equivalents of a 4 year US bachelor’s degree by an expert.
Transcripts with translations from non-English languages may be required for evaluation. In lieu of a bachelor’s degree the applicant can have education, specialized training, or progressively responsible experience the equivalent of a US bachelor’s degree. A ratio of one year of higher education to three years of work is used.
The degree should be directly related to the specialty occupation. This can be demonstrated by detailed explanations of the duties of the positions, written opinions from experts in the field, and printouts of online resources showing the degree that is normally associated with this profession.
Details of similar positions at other corporations in the field may also be useful. Analysis of the employee’s transcript indicates how knowledge learned in particular courses can be instrumental in meeting the requirement.
USCIS is responsible for evaluating the applicant’s credentials to insure they meet the requirements for an H-1B visa. However, although the USCIS grants approval in a Form I-797 which may allow those changing statuses in the US from another visa to begin work, the Department of State is solely responsible for determining if an applicant qualifies to be issued a visa at the US Embassy or Consulate.
Visas may be denied by the Consulate even if approved by USCIS. Grounds for denial may include inconsistent interpretation of meeting the visa requirements, lack of sufficient ties to home country, changes in circumstances, criminal convictions, disease, or memberships and affiliations.
Consulate processing must be carefully and professional handled from submission of the DS-160 to preparing supplemental documents to preparing for an interview.
H-1B visas are essential to many US employers. These visas allow employers to fill positions where there is shortage of trained domestic professionals. Understanding a specialty occupation and proving that you have obtained one is critical to obtaining an H-1B visa.