To obtain an H-1B visa, a petitioner must demonstrate that the proposed position it intends for the beneficiary to fill qualifies as a specialty occupation and that the beneficiary is qualified for that position. As defined in the regulations, a “specialty occupation” is one that “requires theoretical and practical application of a body of highly specialized knowledge” and the “attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation in the United States.” See 8 C.F.R. 214.2(h)(4)(i)(A)(1).
In order to prove that a job is a “specialty occupation” under the H-1B regulations, the employer need only prove one of the following four criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position 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 knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
To determine whether the employer has met is burden and the proposed position qualifies, U.S. Citizenship & Immigration Services (USCIS) will refer to the Occupation Outlook Handbook (OOH) from the Department of Labor.
However, it is not enough that the employer show that a particular job requires a degree. The petitioner must also show the relationship between the degree and the specialty occupation. In order to do this, here is some of the evidence that we submit with our H-1B filings:
- A detailed explanation of the specific duties of the position, the product or service the petitioner provides, or the complex nature of the position that the beneficiary will perform, including the relationship between the position and the degree.
- Printouts from online resources describing the degrees normally associated with the occupations.
- Evidence that similar companies (i.e. same industry) require similar degrees for similar positions.
- Written expert opinions from others in the field that explain how the degree is related to the occupation.
The more documentation provided that supports the relationship between the specialty occupation and beneficiary’s degree/field of study, the increased likelihood that USCIS will adjudicate favorably. For this reason, when preparing an H-1B petition in an effort to avoid delay, it is important to provide as much supporting documentation as possible with the initial H-1B filing.
With H-1B cap season here, employers should not hesitate or wait to contact immigration counsel to begin working on cap subject petitions. Our firm is available to assist with your H-1B needs. For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.