What is a “specialty occupation?”
The immigration law defines a specialty occupation as one that requires the attainment of a Bachelor’s or higher degree – or its equivalent – in a specialized field. If the USCIS concludes that a given position is not in a specialty occupation, the employer’s H-1B petition will be denied.
Over the last several years, the USCIS has been interpreting the specialty occupation requirement more and more narrowly. As a consequence, H-1B petitions are taking longer to process, and more are being denied. According to a study by the National Foundation for American Policy (NFAP), 26% of all H-1B petitions filed in FY 2011 generated Requests for Evidence (RFEs). An RFE can result in months of delays, and if not properly addressed, it could set the stage for a later denial.
The most common request we see in our practice is for more evidence proving that the foreign national’s position meets the definition of a “specialty occupation”. According to law, there are four ways to show that a position can be classified as a specialty occupation. In today’s climate, each may be challenging in its own way.
Standards of Proof
The first way to convince USCIS that a job is in a specialty occupation is to prove that a Bachelor’s or higher degree in a closely related field is normally the minimum requirement for entry into the field. This conclusion largely depends on the qualifications detailed in the Department of Labor’s Occupational Outlook Handbook (OOH) for an occupation with the specified job duties.
Often, and especially in emerging fields, there is no information in the OOH on the occupation outlined in the employer’s job description. Moreover, there are only a few occupations where the OOH states unequivocally that a Bachelor’s degree in a specific field is absolutely required. When the OOH is less than absolute, USCIS is likely to focus on the possibility that a specific degree is NOT required in all cases.
The second way to prove that a job is in a specialty occupation is to show that the duties are so complex or unique that a degree in a relevant field is required. This method requires a highly detailed job description and in-depth information about the employer. Although the legal standard is “a preponderance of the evidence” (also known as “more likely than not”), it is not uncommon for the USCIS to issue an RFE effectively asking an employer to present an airtight case.
A third way to prove that a position is in a specialty occupation is to show that a degree requirement in a relevant field is common in the industry in parallel positions among similar organizations. Over the past several years, USCIS has been interpreting this wording more and more strictly. The word “requirement” is typically construed as an absolute requirement. However, job listings frequently use words that are less than absolute. For instance, “Bachelor’s degree in computer science strongly preferred” is generally not convincing enough for USCIS.
The words “industry” “parallel” and “similar” are also being applied very narrowly by USCIS. If the job is unique or in a new field, it can be very hard to find job listings that the USCIS will see as parallel. An RFE will often state that information on parallel positions must come from employers of the same size in the same narrow business domain. A small employer or one in a unique industry will face a major challenge here.
The last way to prove that a position is in a specialty occupation is for the petitioning employer to show that his or her firm normally requires a Bachelor’s degree for that kind of position. Meeting this standard is far easier for a larger employer than for a small one. Even then, an employer may not have anyone else in the organization with exactly the same job duties, or may have a mix of workers with and without related Bachelor’s degrees.
There are still some lines of work that are generally viewed as specialty occupations requiring at least a Bachelor’s degree for entry. Most accounting, programming, systems analysis, graphic design, teaching and pharmacist positions fall in this category. RFEs are less common for these kinds of positions, but not entirely unknown.
While the USCIS may be denying more H-1B cases these days, we have been able to help many employers overcome RFEs. Despite the challenges, most employers find that the benefits of adding a talented H-1B professional to their staff are worth the time and effort required to gain approval.