Some people refer to it as the “tech workers” visa, but it is far from that. While “tech workers” use a lot of the H1bs that are available, there are doctors, dentists, engineers, teachers, lawyers, accountants and various types of analysts who also use the H1b. In order to qualify for an H1b, there are three main areas of concern: the occupation, the employee (the beneficiary), and the employer (the petitioner).
The H1b Specialty Occupation
The position that the beneficiary is to fill must be a specialty occupation; defined as a position that “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent.” The bachelor’s degree must be the equivalent to a 4 year US bachelor’s degree and the USCIS has interpreted this to mean that the bachelor’s degree must be in a specific field that is relevant to the position. In other words, a person should not have a Bachelor’s in Marketing and file an H1b as a Java Programmer since the Marketing degree would not have prepared this person for a job as a Java Programmer. Further, if the person can somehow function as a Java Programmer, then the USCIS would argue that the position is not a specialty occupation as someone without a relevant degree can work in that position.
The USCIS will use the Department of Labor’s Occupation Outlook Handbook (OOH) as a reference (www.bls.gov/ooh/) and through the various Requests for Evidence (RFE) issued by both Vermont and California Service Centers, the USCIS feels that unless the OOH states that only there is only one field of study for entry into a particular profession, that position is not a specialty occupation. In other words, if the OOH states that in order to become a Software Engineer, you can get a bachelor’s in Computer Science, Software Engineering, Mathematics or a related field, it cannot be considered a Specialty Occupation as there are alternative areas of study that one can take to become a Software Engineer.
In a recent communication from the USCIS, they stated that the “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such professions. These occupations all require a baccalaureate degree in the specific specialty as a minimum for entry into the occupation and fairly represent the types of professions that Congress contemplated when it created the H-1B visa category.”
This statement is consistent with the regulations, specifically INA 101(a)(32) which states that the “term ‘profession’ shall include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.”
The USCIS and Congress have made it clear that certain positions, such as those mentioned above, are considered Specialty Occupations per se (without further evidence to prove that they are).
This can be confusing because on the one hand, the USCIS says that in order for a position to qualify as a specialty occupation, the OOH must show that there is only one field of study for entry into the profession. On the other hand, the USCIS and Congress have said that CPAs, Engineers, Computer Scientists, Professors, Lawyers, Architects, and Doctors are all specialty occupations that Congress contemplated when they created the H1b. Curiously, none of the positions that they have articulated would qualify as specialty occupations should the USCIS apply their own testing standards as the OOH states that there are various fields of study that one can have in order to enter into any of those professions. This inconsistency causes confusion and inconsistent outcomes for H1b filings.
When the USCIS does not feel that the position is a specialty occupation, they will issue a request for evidence in which they provide alternatives to evidence that the position is in fact a specialty occupation. The alternatives are:
• Degree requirement is common to the industry for similarly sized offices and they provide 4 options:
o Provide evidence that competitors in the same industry which have the same employee count and revenue, require a bachelor’s degree for the same position. This is always hard because competitors do not really provide employee counts or financial figures, but the USCIS seems to think that they will. We have found that they will discount any evidence from competitors if they cannot determine the size or finances for the competitor.
o Provide similar job listings from similarly situated companies. This is similar to the request above in regards to similar employee count and finances.
o Provide evidence that an Industry-related association had made a bachelor’s degree in a specific field a requirement for entry into that profession
o Provide letters or affidavits from individuals in the industry that states that a bachelor’s is required for the position. With this option, the USCIS requires that letter writer qualify as an expert in the field.
• Employer normally requires a degree or its equivalent for this position and they provide 2 options:
o Provide a copy or copies of past and present advertisements for the position which shows that they require a bachelor’s degree for the position
o Provide evidence showing that the petitioner has always hired employees with bachelor’s degree based on their past employment practices for the same position. This requires the petitioner gathering the education documents from those employees that hold or held the same position as well as evidence that they were employed by the petitioner like a paystub or a payroll report.
• 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 bachelor’s degree or higher and they provide 2 options:
o Provide a detailed description of the nature of the position which shows that it is so complex, demanding, highly advanced, or sophisticated, thus exceeding normal industry standards as evidence that the position must require a bachelor’s degree
o Provide a description regarding the nature of the petitioner’s business which shows that the petitioner has such a unique and/or specialized model and thus justifies that the position require a bachelor’s degree in a specific field.
To avoid these issues, it is important to provide a very detailed job description which contains percentages for each duty based on the hours per week that each duty requires, the tools and technologies required for the position and even an explanation as to how the beneficiary’s education will assist them with the position. It is also encouraged to provide an Organizational Chart which shows the beneficiary’s position and those who will supervise the beneficiary and who the beneficiary will supervise.
If you are looking to file an H1b, remember that not every job qualifies as a specialty occupation and even some that may appear to qualify, like Human Resources, some marketing positions, drafters, etc., do not qualify unless they meet specific criteria. For this reason, it is important to consult an attorney to determine whether the position meets the criteria set forth by the USCIS at the time of filing.
Next time: Part II: The Employee