Employers that hire foreign born professionals such as engineers, scientists and software developers often file H-1B petitions with the USCIS. To be eligible for H-1B visas, the employers must establish the positions they offer constitute specialty occupation. U.S. immigration laws set forth the criteria for showing a particular position qualifies as a specialty occupation.
A specialty occupation is defined as an occupation requiring theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation in the United States. To fall under this definition, the position offered by an employer must meet one of the four regulatory criteria as follows.
1.Bachelor’s Degree is Required as a Minimum for Entry into the Position.
A bachelor’s degree or higher in the specific specialty or (its equivalent) is normally the minimum requirement for entry into the particular position. To determine whether a bachelor’s degree is a minimum requirement for entry, the CIS usually consults the US Department of Labor’s Occupational Outlook Handbook (“OOH”). The OOH serves as an authoritative source on the duties and educational qualifications for many occupations in the U.S. and incorporates the DOL’s O*Net Program (O*Net”) that is considered as the primary source for occupational information in the U.S. To access the source, the employer may visit this website: https://www.onetonline.org/, and look up the occupation that is in question. For example, if you look up Business Intelligence Analyst on the website, the position falls within the Job Zone Four. Usually, the jobs in this Zone require a bachelor’s degree or higher in a specialty or its equivalent as the minimum requirement for entry into the position. As is provided by O*Net, in most instances the educational level appropriate for the Business Intelligence Analyst occupation is at least a bachelor’s degree, and 91% (58% bachelor +33% master) of business intelligence analyst positions require a bachelor’s degree or higher. With this information, the conclusion can be made that a bachelor’s degree is normally required for this occupation, meaning it would be considered a specialty occupation. This process can be applied to any job you have in question in order to determine if a bachelor’s degree is considered normally necessary for the occupation in question.
2.Bachelor Degree is a Common Requirement in the Industry.
The degree requirement is common to the industry in parallel positions among similar organizations. Some main factors that are typically considered by the CIS to determine the industry standard includes: whether the OOH reports that the industry requires a degree; whether the industry’s professional associations have made a degree a minimum entry requirement; or whether letters or affidavits from firms or individuals in the industry attest that such firms routinely employ and recruit only degreed individuals.
3.The Occupation is Specialized and Complex.
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a baccalaureate degree or higher. Using the occupation of a data analyst for example, the job description requires the employee to have knowledge of complex computer software applications and programming. These duties involve tasks that are more than just the routine tasks that can be performed by following simple instructions. Now the problem is how do you go about establishing the occupation’s duties to be considered complex? One way to establish this requirement is by having an expert in the field write a letter based on their knowledge and expertise. In this letter, the expert would explain why the occupation is complex enough to require a bachelor’s degree. Unless the CIS questions the expert’s credentials and knowledge as an expert, the opinion letter must be considered and given due weight as evidence.
During this process of trying to prove the complexity of an occupation, there is a common misconception; if the wage is low, then the job may not be considered a specialty occupation. While the wage level is one of the factors in evaluating whether a position is specialty occupation, it is not the determinant factor. .
4. The Degree Requirement is a Normal Requirement for the Employer.
The employer normally requires a degree or its equivalent for the position. This means if the employer typically requires its Data Analysts to have a bachelor’s degree in computer science, information systems or a related field of study, then it should qualify as a specialty occupation. A company can show this by having the employer write a letter confirming that all employees in his department have at least a bachelor’s degree, and it is the company’s routine practice to hire applicants who have at least a bachelor’s degree in the given occupation. In addition, the employer could provide evidence that their job postings state a requirement for a bachelor's degree.
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