Who is eligible for an H-1B?

Congress has defined “specialty occupation” as requiring (1) theoretical and practical application of a body of highly specialized knowledge; and, (2) attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S.  What does this mean?

CIS regulations allow an employer to establish that the alien’s services fall in a “specialty occupation” in one of four ways:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. 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;
  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 knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Cases interpreting the statute and regulations provide guidance on how to establish that the given position constitutes a specialty occupation.  An employer should consider the following criteria.  The employer should focus on the tasks, job duties and actual requirements for the position used both at the employer’s business and throughout the industry.  The position should require theoretical and applied knowledge which is almost exclusively obtained through university or college studies.  Eligibility for the position should include a precise and specific course of study that relates directly and closely to the offered position.

If the employer requires a general college degree, this will most likely not be considered a specialty occupation.  If the employer requires a degree in the hopes of obtaining a higher caliber of employee, this will not suffice either.  The way to think about it is that the degree must be tied to the job and everyone in the industry must generally think that a degree is necessary to do the job.  CIS takes the position that a position qualifies as a specialty occupation if it “always” or “nearly always” requires a bachelor’s degree or higher.  “Usually” requires is not enough.

The strongest H-1B applications will involve positions that require the bachelor’s degree or higher.  That being said, the regulations and CIS do contemplate the possibility of experience alone serving as the basis for the specialty occupation designation.  You should know that these cases are much harder to get approved as the employer is in the unenviable position of asking CIS to look beyond the education and conclude that the level of experience required for the position meets the definition of specialty occupation.

Case law suggests that a combination of education and experience may be enough if the beneficiary has some formal college-level training and the training plus education are equivalent to the degree.  When an employer wants to substitute experience for education must include both theoretical and practical application of specialized knowledge required at the professional level.  So, an employer may be able to substitute experience for education but the hurdle for approval is much higher.  Any employer wishing to follow this approach should be fully aware of the low chance of success.

One additional issue arises in many H-1B cases.  Many foreign workers received their education overseas. Their academic transcripts are often in another language.  The education systems vary from country to country. Different countries refer to degrees or course completions in different ways.  The truth is that USCIS is not equipped to adequately evaluate the educational qualifications of foreign workers holding international degrees. The solution to this situation is to ask a reputable, licensed evaluation service to review the academic transcript of the foreign worker and to provide an assessment of the employee’s educational qualifications.

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