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H-1B Specialty Occupation—Plan Ahead to Ensure Your Position Qualifies As A “Specialty Occupation”

Now that H-1B registrations have been selected and employers begin the filing process for H-1B cap petitions it is important to consider the requirements set in place to determine whether a proffered position qualifies as a “specialty occupation.” USCIS places a heightened scrutiny of nonimmigrant petitions in the H-1B Specialty Occupation classification and continues to issue H-1B RFEs and denials based on the issue of specialty occupation. In order to avoid, or prepare to respond to such issue, a good understanding of the factors that go into consideration is crucial. So what is considered a specialty occupation?

To qualify as a specialty occupation, the position must meet at least one of the following criteria by a preponderance of evidence standard:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement for the job is common to the industry or the job 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 is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree. 8 CFR §214.2(h)(4)(iii)(A).

Please note, USCIS interprets the term “degree” in the criteria above to mean not just any degree, but a bachelor’s or higher degree in a specific specialty. In other words, the Petitioner bears the burden of proving “more likely than not” that at least one of the four criteria is met. This may sound easy in theory, but without proper documentation and informed decisions that go along with the process, can easily become a ground of denial.

How can an employer ensure that the position they are sponsoring qualifies as a specialty occupation?

#1 Select the appropriate SOC code at the Labor Condition Application (LCA) stage of the filing process. As an example, selecting catchall SOC codes such as “Computer Occupations, All Other” can become an issue later as it is difficult to make the argument that all other computer occupations require at least a bachelor’s degree in a specific field. Think about computer technicians that you go to have your laptop fixed, or computer support specialists that provide technical assistance over the phone or in person. High school education is usually normally required for these types of positions, with on-job training offered, not a bachelor’s degree or higher. Therefore, it is important to discuss your options regarding the SOC code with an immigration attorney before starting a case, to pave the road ahead in the right direction from the onset.

#2 Submit supporting letters detailing the job duties and the nature of employer’s business operations.  The purpose of this is to demonstrate to USCIS that the position is complex, unique, and/or specialized, which cannot be done with a general overview of the tasks associated with the position. For example, compare the following statements describing the same job duty for a Software Developer position: (1) developing software, versus (2) analyzing business requirements and creating test cases, test scenarios, and test scripts for both manual and automated testing to ensure complete testing coverage; performing functional, LOAD, UI and API testing, documenting the automation plan, maintaining the selenium & JAVA automation code in Eclipse Java Photon, use build management tools like Maven and testing tools Junit, TestNG, etc. In the second example, listing out the tools and technologies used, and the skills required to perform the job duties can further help establish the complex nature of the particular position. This is an easy way to strengthen the merits of the case.

#3 Gather additional evidence. Although this step is generally mostly necessary at the RFE stage, it is still wise to keep in mind ahead of time so that the evidence is already prepared to submit when asked by USCIS. Here are some examples of documents that may be used to establish that the position qualifies as a specialty occupation:

  • Expert evaluation from an industry-related professional indicating that the particular position is so complex or unique that it can be performed only by an individual with a bachelor’s degree in a specific field;
  • Job postings for similar positions indicating industry-wise hiring practice;
  • Government reports, such as the OOH or the O*NET discussing the corresponding SOC code education requirements;
  • Letters from companies in the same industry attesting that similar organizations routinely employ and recruit only individuals with a particular bachelor’s degree;
  • Evidence of petitioner’s past employment practices for the particular position

This is a general overview of the specialty occupation requirement of H1-B Specialty Occupation visa, and there are many other small nuances that make big differences at the end. Consult an immigration attorney today to find the best options for you.

By: Jeanetly Garcia