For those seeking an H-1B, the most important criteria that must be met, is that the occupation that they are applying for be a “specialty occupation”. USCIS has listed four methods of determining if a position is a specialty occupation:
- A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
- The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
- 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 the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
We will look at each method individually. We will discuss the first method in this article and each additional method in a new article.
A Bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position
The first method of showing that a position is a specialty occupation is that the position is one for which a bachelor’s degree or higher degree in a particular field or fields, or its equivalent, is normally the minimum requirement for the particular position. How would one prove this? Generally, USCIS will look at the Occupation Outlook Handbook (OOH) put out by the Department of Labor each year. That book lists a number of position as well as the normal entry level requirements for the position, including what degree is normally required for entry into the field. If the position in question is covered squarely by a position in the OOH, then that is what USCIS will generally go with. However, there are a number of positions that do not necessarily fit squarely (or at all) in the positions listed within the OOH. These cases are much trickier to try and use this method.
The primary reason it is harder to use this method with such position is because USCIS often confuses the SOC code used in the application process with the actual position in question. In other words, USCIS will ASSUME that the SOC code used in the application correctly correlates to the position when this is not always the case. For example, let’s say a person is an accountant intern – someone who has an accountant degree but is still required to complete a certain amount of accountant experience under the guidance of another certified accountant. While it is clear that this position requires attainment of a bachelor’s degree in a particular area as the minimum qualification, many times employers or the DOL will issue a SOC code of “bookkeeper”, because the title of the position usually does not include the word “accountant”, as the person cannot use that title until they complete the requisite experience requirements.
If the SOC code of bookkeeper is used, USCIS will assume that a bachelor’s degree is NOT required and could deny the H-1B. While it may be possible to convince USCIS that the position qualifies under another method, many officers will just ignore any evidence submitted trying to show that the position is one other than the one described by the SOC code. It is just as important to accurately describe the position and all requirements as it is to ensure that the correct SOC code is used in ALL paperwork. So for the above example, when filing the LCA, determining the Prevailing Wage, and filing the I-129, if n SOC code of accountant is used, the case is more likely to be approved.
Another issue that can come up using this method is if the position is so general that many different degrees could qualify someone in the position, or a general degree is sufficient. This can come into play if USCIS feels that the position is too general OR if you are trying to hire someone into the position who has a degree that is less connected to the position. A good example is trying to hire a computer person with an English degree. They may have taken computer courses, learned on their own and received all the required certificates, but the degree just does not match the position. Another example is a manager at a store. In most cases, such positions do not even require a bachelor’s degree. However, even a particular store did require such a degree, there are a number of degrees that could qualify someone for such a position – which means that it is not a specialty occupation.
We will discuss the other methods in subsequent emails. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.
Immigration Briefs 