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.)

Friday, August 3, 2018

What Exactly is H-1B Specialty Occupation?

USCIS is taking a tightened position regarding the meaning of H-1B "specialty occupation" pursuant to President Trump's Buy American Hire American executive order.  Many previously acceptable positions are being challenged now.  Computer programmer, systems analyst, and even software engineer position applications are being served with RFEs questioning whether the sponsored position is a specialty occupation. 

H-1B visas were created to bolster domestic tech industries by giving skilled foreigners up to 6 years of nonimmigrant status to work in the U.S. Successfully applying for the H-1B visa means meeting the statutory requirements of "specialty occupation". The Immigration and Nationality Act defines specialty occupation as requiring:

(A) theoretical and practical application of a body of highly specialized knowledge, and
(B) 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.

Federal regulation 8 C.F.R. § 214.2(h)(4)(iii)(A) adds that the position must meet one of four requirements to qualify as a specialty occupation:

1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement;
2)  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; 
3) The employer normally requires a degree or its equivalent for the position; or
4) The nature of the specific duties is so specialized and complex that knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree.

Proving a position is specialty occupation to USCIS can be difficult. USCIS has interpreted the term "degree" requirement to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered position. See Royal Siam Corp. v. Chertoff, 484 F.3d 139, 147 (1st Cir. 2007).  Hence, a generally relevant baccalaureate or higher degree is not enough. This reasoning creates a lot of uncertainties for employers when proving specialty occupation.  For example, for many years, a requirement of an engineering degree was acceptable proof of specialty occupation. But recently, some USCIS officers argue that an engineering degree may be too broad a requirement, as it includes many different specific specialties in science. 

Furthermore, the Administrative Appeals Office (AAO) has established that listing degree requirements from different major fields would disqualify a position from being a specialty occupation unless the employer can prove that each field is directly related to the duties and responsibilities of the particular position. Hence, degrees in chemistry or biochemistry with common core coursework have been found to be directly related to a related position's job duties. However, degree requirements in physics or philosophy would most likely be rejected.  

Specialty occupation visa applications are also subject to discretion from USCIS officers. Officers sometimes interpret 8 C.P.R. § 214.2(h)(4)(iii)(A) to mean that a specific degree is absolutely necessary, ignoring words such as "normally" and "usually". They rely heavily on the Department of Labor's Occupational Outlook Handbook (OOH) when adjudicating H-1B cases. If the OOH does not 100% endorse a position's requirement for a particular degree, neither will USCIS officers. Such examples include computer programmer and system analysts positions.

The OOH was created to provide general and statistical information about major occupations in the U.S.; it is never meant to serve as absolute legal standards for visa applications.The other issue with OOH is that it does not contain information on some occupations such as system engineers and statistical programmers. The handbook is also not the only legitimate source of occupational information and may not have the most up-to-date information. Nevertheless, it sets a standard for degree requirements and job duties that officers base their decisions on.

USCIS also examines the ultimate employment of the beneficiary to determine whether the position qualifies as a specialty occupation. When determining whether a position is a specialty occupation, USCIS also looks at the nature of the business offering the position and the description of the specific duties of the position as it relates to the particular employment. This includes consulting positions at third party client sites. Officers make a judgement on the job duties as a specialty occupation, regardless of what the employer states the job title is or the degree requirements are. 

When responding to Requests for Evidence, employers should make both legal arguments based on the statute and regulations and factual arguments based on the particulars of the H-1B position being offered.   For example, the regulation only requires that the position "normally" requires a degree and that the employer "normally" requires prospective workers to have a degree for the position. It does not impose an absolute requirement.  Further, if the OOH does not read that a position absolutely requires a degree, this does not mean the statute's definition is not met. Finally, it should be noted that only one of the four regulatory requirements needs to be met.

Factually, an employer can present evidence that it has always hired employees with specific requirements for a position in the past to prove that it is a specialty occupation.  Employers may also present evidence that other employers also have similar requirements in parallel positions.  Finally, arguing that the nature of the position or the specific duties of the position are so complex that a specialized degree is required is another factual argument to make.

The AAO has stated that a combination of a general bachelor's degree and experience for job duties and responsibilities can qualify a position as a specialty occupation.  This highlights the importance of the job qualifications, duties, and nature of the petitioning entity's business operations. Rather than viewing a job as a theoretical occupation in a vacuum, adjudicators must also consider these particular factors.


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