Overcoming H-1B Challenges – How to Prove Specialty Occupation Eligibility

The most common H work visa is the H-1B which is for “specialty occupations.” Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States. In more simple terms, this typically means that the position requires at least a bachelor’s degree in a specific professional field. This standard has tightened over the years and H-1B petitions for borderline occupations are regularly challenged by U.S. Citizenship and Immigration Services (USCIS).

Some examples of positions that might receive a specialty occupation challenge by the USCIS include coaches, marketing analysts/managers, business managers, administrative assistants/coordinators, recruiters, nurses, certain computer programmers and technicians, realtors, certain healthcare professionals, artists and designers, translators, instructors and paralegals. That is not to say these occupations can never qualify under the specialty occupation standard. Depending on industry standard, the company’s hiring practices, and the complexity of the position’s duties, a position from the list above may very well qualify for an H-1B. However, it is extremely important for the H-1B petition to sufficiently articulate eligibility as a specialty occupation and to provide appropriate supporting evidence.

The standard to determine a “specialty occupation” requires that the position meet one, but not all, of the following criteria:

  1. The Employer normally requires a degree or equivalent;
  2. A bachelor’s degree or equivalent is normally the minimum requirement for entry into the particular position;
  3. Degree requirement is common in industry in parallel positions among similar organizations or the particular position is so complex or unique that a degree is required; or
  4. Nature of specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of degree.

So how can an employer prove that a position qualifies as a specialty occupation under the above criteria?

The first step will be to provide a detailed breakdown of the duties of the position, preferably with a percentage for each. Based on the duties, the employer will pick an appropriate occupation from the U.S. Department of Labor’s Occupational Outlook Handbook (OOH).  The OOH is a publication of the U.S. Department of Labor’s Bureau of Labor Statistics which provides information about the nature of work, working conditions, training and education, earnings, and job outlook for hundreds of different occupations. The OOH typically articulates the minimum degree requirement for different occupations as well as the substantive area in which the degree must be granted, depending on the type of industry or business context. Therefore, the OOH can sometimes be helpful to prove eligibility under the second criterion as it will be an authoritative source to determine if a degree requirement is normally the minimum requirement for entry into the occupation.

For borderline occupations, the OOH will typically list that at least a bachelor’s degree in a specific field is not required, which is why most challenging occupations would not qualify for H-1B based on the second criterion above. However, often times the employer could pick an occupation that represents a significant aspect of the proffered H-1B position. For example, a job position that incorporates engineering and managerial duties could be appropriately classified as an engineer position, instead of a manager position.

Employers should carefully pick the appropriate occupation from the OOH because USCIS has recently started to challenge occupations that do not actually resemble the proffered H-1B position.  Most job positions are not a 100% match to one of the OOH occupations, but the chosen OOH occupation should closely resemble the actual job position.  Further, certain occupations from the OOH list will require the employer to pay the H-1B employee a higher salary, because the OOH occupation is typically used to determine the amount of the prevailing wage for purposes of the H-1B petition.

The employer can be fairly creative when coming up with documentation to prove eligibility under one of the remaining three criteria.  Some examples of such documents include but are not limited to:

  • Letters from other employers in the industry stating that they normally require a bachelor’s degree in a specific field for the occupation in question;
  • Job advertisements/postings for the proposed position stating that the employer requires at least a bachelor’s degree in a specific field (ensure that the employee actually has such a degree);
  • Job advertisements/postings for similar positions by other employers in the industry, requiring at least a bachelor’s degree in a specific field;
  • Proof, if any, that this job was previously handled by someone with a related degree;
  • Online bios or background information for individuals employed in a similar capacity for other employers, including information regarding educational background;
  • A summary of why the duties to be performed require at least a bachelor’s degree (this would support the argument that the specific duties are so specialized and complex that college-level coursework in a related field would be required);
  • An expert opinion by a qualified source (e.g. professor in the field of endeavor) articulating why the proposed job position is one that requires the incumbent to possess at least a bachelor’s degree in a related field (because of an industry standard and/or because of the complexity of the job duties)
  • Organizational chart showing the employer’s hierarchy and staffing levels, and how the offered position fits within the department’s structure (to illustrate the complex nature of the job);
  • Sample complex projects or work assignments that the employee will work on in the proposed position; and
  • Program brochures, website printouts, marketing materials, news articles, and other materials to show the employer’s size and the complexity of the projects that the employee will be in charge of.

With the H-1B season upon us, employers must act quickly both to decide if they wish to sponsor any employees for H-1B and to determine if such employees would actually qualify under the rigorous specialty occupation standard.  The above overview is not a comprehensive analysis.  A case-specific strategy is needed for each case based on unique facts and circumstances.  Substantial case law and government policy have developed the specialty occupation standard over the years.  Therefore, it is important to consult with an experienced immigration lawyer to determine if a particular job opportunity is an H-1B caliber position.

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