The H-1B nonimmigrant classification is a vehicle through which a qualified alien may seek admission to the United States on a temporary basis to work in his or her field of expertise. However, one does not receive this visa simply because a US employer is willing to offer a job to a foreign worker. Instead, not only must the foreign worker receive a job offer from a US Employer, but such offer must be for a “specialty occupation,” and the foreign worker must be qualified to hold such occupation.
A “specialty occupation” is defined as a job that “requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.” In other words, the occupation itself must require a level of knowledge that typically is only obtained after completion of at least a Bachelor’s Degree in the relevant field. Also, it can be difficult to qualify general business positions as “specialty occupations” even if there exists a specific field of study that corresponds to it. For example, the occupation of “administrator” with a bachelor’s degree in “business administration” may be viewed as too general and not specific enough to quality as a “specialty occupation.” Therefore, the way that the occupation is described in the H-1B petition is often critical to its success.
To qualify as a “specialty occupation,” the position must meet one of the following requirements: (1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the 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 the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).
In order to perform services in a specialty occupation, an alien must meet one of the following criteria: (1) hold a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university; (2) possess a foreign degree determined to be equivalent to a U.S. bachelor’s or higher degree as required by the specialty occupation from an accredited college or university; (3) have any required license or other official permission to practice the occupation (for example, architect, surveyor, physical therapist) in the state in which employment is sought; or (4) have education, specialized training, or progressively responsible experience (or a combination thereof) that is equivalent to completion of a U.S. bachelor’s degree or higher in the specialty occupation, and have recognition of expertise through progressively responsible positions directly related to the specialty occupation. See 8 CFR 214.2(h)(4)(iii)(C).
As one can see, it is possible to qualify for a “specialty occupation” even without a Bachelor’s Degree, but it will be difficult to prove in that case if one truly has the required experience and skills to qualify for the “specialty occupation.” Complex matters such as these are best handled by a professional immigration attorney.
The information contained in this article does not constitute a legal opinion nor does it serve as replacing a proper individual legal consultation. Any use of this information shall be entirely at the risk of the reader.
This article was written by Dotan Cohen Law Offices, an immigration law firm that handles legal matters related to the United States, Australia, United Kingdom, Canada, and Israel. Our contact details are:
Tel. +1-646-797-5717
e-mail: [email protected]
