15 Nov What is Considered a Specialty Occupation for an H1-B Visa?
The H-1 B visa allows an employer to file a petition for a nonimmigrant to temporarily work in a specialty occupation in the United States. One of the requirements that the employer needs to show is that the worker is qualified to perform services in that specialty occupation, which begs the question, “what is a specialty occupation?” In order to answer this question one must look to the law and USCIS’s analysis.
8 U.S.C. § 1184(i), states that a “specialty occupation” requires a “theoretical and practical application of a body of highly specialized knowledge,” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Furthermore, according to 8 C.F.R. § 214.2(h)(4)(iii)(A), the job position must require one of the following: (1) a baccalaureate or higher degree or its equivalent is normally the minimum requirement for the position; (2) the required degree is a standard prerequisite in the industry in similar positions and organizations or that the position is so complex that is can only be performed by a person with a degree; (3) the employer normally requires a degree for the position; or (4) the services are so specialized that it is usually associated with the completion of a baccalaureate or higher degree.
To best illustrate the above, it is helpful to look at the case, Palace Wine & Spirits, Inc. v. United States Citizenship & Immigration Servs., 2012 U.S. Dist. LEXIS 72797 (D. Minn. May 25, 2012). The employer was a liquor and sales and business acquisition company who petitioned to hire a part-time, entry-level “Operations and Finance Analyst.” USCIS denied the employer’s petition stating that the position was not a specialty occupation.
In determining whether an “Operations and Finance Analyst” is a specialty occupation, USCIS considered a similar position in the Bureau of Labor Statistics Occupational Outlook Handbook. The handbook revealed that this type of position did not require a special level of education. Although the handbook did indicate that a bachelor’s degree is usually required, the USCIS maintained that this alone does not categorize it as a specialty occupation. Moreover, the court stated that the “USCIS has consistently stated that, although a general-purpose bachelor’s degree, such as a degree in business administration, may be a legitimate prerequisite for a particular position, requiring such a degree, without more, will not justify a finding that a particular position qualifies for classification as a specialty occupation.” Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).
In conclusion, a position that simply requires a Bachelor’s degree alone is itself insufficient to prove that a certain job position qualifies as a specialty occupation – the employer also needs to prove that the position “involved the theoretical and practical application of a highly specialized body of knowledge,” It is also important to note that USCIS consistently references the Bureau of Labor Statistics Occupational Outlook Handbook as a resource to evaluate whether a certain occupation is considered a specialty.
To find out more about professional, well-researched, articulate, expository narrative Business Plans, crafted specifically to address USCIS’s concerns, contact e-Council Inc.com at info@ecouncilinc.com.
e-Council Inc.com’s website, newsletter and other forms of communication contain general information about legal matters. The information is not legal advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider