H-1B Series: What Is An H-1B "Specialty Occupation"?
The Legal Standard
The fundamental requirement of the H-1B program is that the position offered be a "specialty occupation." Under the Immigration and Nationality Act, "specialty occupation" means
"an occupation that requires--Translated into simpler terms, the "specialty occupation" requirement means that the job offered must be a professional-level position which would normally require attainment of a four-year college or university degree. Moreover, the degree requirement must be in an appropriate subject area. A position that could be filled by an individual with a bachelor's degree in any field would not ordinarily qualify as a specialty occupation.
Within those general parameters, there is no set list of specific positions considered to be specialty occupations comparable to the list of job categories that exists under NAFTA for TN professionals. Some positions will appear prima facie to be "specialty occupations" more than others, but overall employers enjoy a fair amount of flexibility in the variety of positions which can be defined as professional and be the subject of an H-1B petition.
In all cases the petitioning employer must submit evidence to the INS to establish that its position meets the "specialty occupation" standard. INS regulations add the following specific criteria:
Defining the Job
Before it prepares the H-IB petition, the employer should identify the job title and draft a narrative job description and statement of requirements for the position. Several strategic considerations come into play in this process, requiring careful attention.
First, the job title and job description should use commonly accepted terms and typical duties that specify what the specific occupational category is, and that the job is professional in nature. Typical duties that are generally professional are those which suggest application of specialized knowledge, discretion to exercise independent judgment over a function, or working at an equal level with or supervising other professional personnel. Action verbs should be used which suggest complex responsibility and judgment, such as "analyze," "coordinate," "supervise," "manage," etc. Generic statements of professional-sounding job duties should be avoided, however. Rather, the drafter should incorporate individualized specific language that accurately characterizes the job duties.
Next, the stated requirements for the job should be the employer's normal requirements for the position and must, of course, include requiring at least a bachelor's degree or higher "in the specific specialty" (or its equivalent). The employer should also include any usual experience or specific knowledge requirements for the position.
There is some latitude for what type of degree requirement is "in the specific specialty" (or its equivalent), but this will be subject to interpretation on a case-by-case basis. In a narrow, literal view of the requirement, a software engineering position would strictly require a degree in software engineering or computer science to qualify as a specialty occupation. In fact, many employers of software engineers accept a bachelor's degree in other engineering subjects in addition to computer science, perhaps with relevant work experience. The INS tends not to apply the literal view, allowing an employer's degree requirement to encompass academic subjects which are "directly related" to, but not strictly "in" the specific specialty occupation category. For example, it has tended to accept electrical or electronics engineering and mathematics as degrees sufficiently related to computer science to be acceptable for the software engineering occupation.
Beyond that, however, if the employer's range of acceptable degrees appears too broad, or does not specify a degree subject at all, the INS will question whether the job is a "specialty occupation." It might take the position that a degree in mechanical engineering, for example, is not "in the specific specialty" of computer programming, so that if the employer will accept such a degree to meet its requirement the job will not qualify as a "specialty occupation."
In practice, the "unrelated degree" issue tends to arise only in specific cases where the foreign national's actual qualifications suggest the problem. The foreign national must meet the normal professional requirements for the job, and if his or her qualifications do not appear directly related to the job, the INS may raise two objections: (1) if the job is in fact a specialty occupation, then the foreign national is not qualified for it without the right academic background or, (2) conversely, if the foreign national is acceptable to the employer with seemingly unrelated credentials, then the job requirements are too broad for the job to be a specialty occupation.
Thus, strategic drafting of the job description and requirements is important so that the foreign national's actual credentials directly relate back to the stated description. Sometimes this will mean creating a "hybrid" job description that calls for and links more than one academic specialty. For example, a position offered may be that of a software engineer whereas the foreign national's degree is in mechanical engineering. Initially, the credentials appear to be unrelated to the job. In fact, however, the petitioner might be a vendor of CAD/CAM software products for the mechanical engineering design industry, and the foreign national would use his mechanical engineering background for development of advanced new features of the product. In this case, the job description should be drafted to reflect the connection between mechanical and software engineering, using phrases such as, "the employee would apply knowledge in mechanical engineering to design software products. . . ."
In another common scenario, a person being offered a job as a computer systems analyst might have an academic background in business. The areas appear unrelated, but the job duties in fact involve designing business systems solutions for consulting clients. The job description should be written to emphasize the business aspect of the duties so that a stated requirement encompassing a business degree as an alternative to computer science will be accepted as normal and directly related to the job duties.
There are three widely used reference sources published by DOL that are available to employers to provide assistance in preparing job descriptions and guidance as to the generally accepted "normal" requirements for particular occupations. First, the Dictionary of Occupational Titles (DOT) and the Occupational Outlook Handbook (OOH) are publications compiled by the U.S. Department of Labor that include over 12,700 job titles, ostensibly representing a full range of possible occupations in the U.S. today.
The DOT, as its "Dictionary" title suggests, provides very detailed standardized job descriptions for every one of its job titles, along with a nine-digit occupational code number known as the "DOT Code" and a "Specific Vocational Preparation" ("SVP") code number which estimates the usual level of requirements for the job (everything from "short demonstration only"-obviously nonprofessional-to "over ten years"). The DOT can be viewed on-line at http://www.oalj.dol.gov/libdot.htm.
The OOH concentrates on broader groups of occupational categories, and provides more general narrative information about what workers do in those categories, typical working conditions, typical training and education needed, earnings, and expected future employment trends. The OOH includes a specific category for "Professional and Technical Occupations." Both books provide an overview of typical job duties and the general minimum requirements for each job title, and can be helpful in determining whether a particular position fits the definition of a "specialty occupation." The INS in particular will refer to these books for authority, more commonly the OOH, when it questions whether a job described in an H-1B petition should require a bachelor's degree or denies a petition not describing a "specialty occupation." The OOH can be viewed on-line at http://www.bls.gov/oco/home.htm.
The third reference is a purely on-line resource published by the Department of Labor known as O*NET. This is a database of information on job descriptions, skills, abilities, knowledge, work activities, and interests associated with approximately 950 occupations. It is intended for a variety of uses by the general public, but for purposes of H-1B petition preparation it is most pertinent for assigning a "Standard Occupational Classification" (SOC) code to each of its 950 occupations, which then forms the base list of occupations used in the "OES" on-line prevailing wage system. Prevailing wage analysis using the OES database will be discussed in detail in a later article in this series. The O*NET can be viewed at http://online.onetcenter.org/.
These reference sources can be used to suggest standard job titles that are normally recognized as professional, along with generally accepted language describing typical job duties for such positions. Employers are cautioned, however, not to rely too much on these sources. They provide good general reference background, but should not substitute for the employer's own description of its job and requirements based on its own circumstances. INS examiners have indicated that when they recognize a petitioner's supporting job description as being "lifted" verbatim from one of these sources, they immediately question the bona fides of the job offer and petition.
Finally, the employer must use the job description to prepare and submit the H-1B petition, along with its evidence that the "specialty occupation" standard has been met. The petition forms themselves require a job title and salary and a short job description, which provide the INS examiner with a first impression of whether the job is a "specialty occupation." Another form requires the petitioner to state specifically the level and subject field of the foreign national's academic degree. This reflects a new INS effort to weed out and question situations where a foreign national's degree appears unrelated to the job duties or the degree field normally required for the occupation. The employer typically provides more detail in a separate supporting letter, including a lengthier description of the job and its requirements and the foreign national's qualifications. Depending on the circumstances of the case, the petitioner might wish to include more or less detail in the job description and stated requirements, or include other independent evidence to help establish that a described job is a "specialty occupation." Suggested forms of such supporting evidence will be discussed in the next article in this series.
About The Author
George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.
This article is the sixth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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