A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, January 5, 2015

Does my job qualify for H-1B?

If you are a foreign student who recently graduated and landed a dream job with an employer that promised H-1B sponsorship, you should celebrate right?  Maybe or maybe not.  

Employers and foreign nationals are, once again, gearing up for the upcoming H-1B filing season. The first date that USCIS will accept H-1B petitions for FY2016 is Wednesday, April 1, 2015. The H-1B visa was created for professional jobs or "specialty occupations." 

What constitutes a specialty occupation is not always clear. Unless you are offered a classic H-1B job such as computer programmer, it is very likely that USCIS will issue a Request for Evidence (RFE) to demand proof that the position offered is a specialty occupation.  For examples, if you are offered a position as a "business manager" or "market research analyst", it is very important to analyze the position carefully before submitting your H-1B petition.

What is an H-1B Specialty Occupation?
The Immigration and Nationality Act (INA) defines a "specialty occupation" as "an occupation that requires "theoretical and practical application of a body of 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."  This definition is quite abstract and rigid.  Subsequently, the agency regulations provided further clarification for the degree requirement.  

Under the H-1B regulations, a job qualifies as a specialty occupation as long as it meets one of the four (4) listed criteria: 
  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
The Job Description
Generally, positions such as accountant, dentist, engineer, etc., that normally require a bachelor's or higher degree to enter do not have any issue.  Some positions, such as art specialist, marketing specialist, business analyst, etc., are not as clear-cut.  For these positions, we must first analyze the job duties and requirements.  If the job duties reflect the duties of a professional position, (for example, an art specialist is performing the duties of an appraiser), then it should be argued that the position is in fact professional in nature.  Related resources especially the Occupational Outlook Handbook (OOH) should be consulted as it is often cited by USCIS as authority.  

Industry Standard
Further, the hiring practice of other companies should also be researched.  If competitors or other companies in the same field require a bachelor's degree for this position, then it can be argued that a bachelor's degree is required for this position based on industry standard.   Copies of job postings, letters by other companies, experts in the field, etc., can be used as proof.

Employer / Internal Requirements
Alternatively, the employer can also argue that the job is a specialty occupation with respect to the company's own requirements and practices by showing that the employer normally requires a degree or its equivalent for the position.  As evidence, the employer may present documents to show that it has actually hired individuals with bachelor's degrees for this or similar positions. 

Another way to establish the employer's internal requirements is to argue that this particular position is "so complex and unique" that it can be performed by a degreed individual. Here, careful analysis must be employed to examine the position including every duty and responsibility, the size and hierarchy of the company, the person(s) that the position reports to, the professionals and departments that the employee interacts with, etc.  Any need for quantitative or qualitative analysis, organizational skills, communications skills, abstract concepts, product branding, customer relationships, etc., should be incorporated to establish the complexity of the job duties.  

Finally, the employer may also argue that the job duties are "so specialized and complex" that knowledge usually associated with a bachelor's or higher degree is required.  This is similar to the above requirement except that it focuses (less rigidly) on objective facts and data.  The employer only needs to establish that knowledge associated with a bachelor's degree is usually (not absolutely) required for the profession, 

Conclusion
To sum up, an H-1B petition will not be approved unless it is determined by USCIS that a specialty occupation is involved. Requests for Evidence (RFE) are often issued by USCIS on this particular issue.  Any issues regarding this issue should be addressed early on during the application process.  



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