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H-1B Series: Discussion of the "Specialty Occupation" Standard and Particular Occupational Categories
by George N. Lester IV

George N. Lester IV The following discussion of selected categories of occupations is not meant to be exhaustive but is, rather, a selection of categories which have historically presented problems or otherwise raise interesting issues in preparation of H-1B petitions.

Computer Programming and IT Related Positions

Some years in the past, it was common for the INS to question whether a position characterized as "computer programmer" was a professional, "specialty occupation" position. The concern dated back to when most computers were large main-frame systems, and a "computer programmer" commonly performed duties of a more rote nature that today would be characterized as data entry or computer operations which typically required a course of technical, nonacademic training. Although such a characterization is less common today, formerly the INS regularly denied H-1B petitions for "computer programmer" positions where, upon close review of the job duties described in the petition, it determined that the position was nonprofessional.

Now, as the computer systems and information technology revolution has swept through all levels of business, the INS generally recognizes that the nature of typical duties in computer programming have changed and become more complex and specialized, so that bachelor's-degree training should be necessary. It is now normal INS policy to accept a computer programmer position as a "specialty occupation."

A December 2000 memorandum prepared by the Director of the Nebraska Service Center of INS confirms this view. The memo noted that computer programmers and programmer/analysts were examples of occupations "in transition" from non-professional to professional status, and had suffered from inconsistent adjudication results. It instructed examiners at the Center that they should generally consider the position of programmer to qualify as a specialty occupation. This will especially be true, the memo noted, if the position involves "providing clients with programming/analysis, custom designs, modification and/or problem solving of software." It followed that "higher level positions such as programmer/analyst, software consultants, and computer consultants would also qualify for specialty occupation status." On the other hand, the memo continues, "positions strictly involving the entering or review of code for an employer whose business is not computer related (does not furnish software or hardware development, production and/or consulting) may require more careful scrutiny" and would remain an example of a lower level position where a 2 year degree or certificate would be an acceptable qualification, and therefore the position would not qualify as a specialty occupation.

However, a petitioner must still submit a properly detailed job description for such a position, outlining the particular specialized knowledge and duties in its particular position. Typically, this should include at least mention of the specific software languages, tools, libraries, and operating systems that the beneficiary will use, and a description of the types of development projects he or she will undertake.

Interestingly, even as the old INS concern over the "computer programmer" job title seems to have been resolved, the advent and expansion of the Internet and related developments have led to renewed scrutiny by INS adjudicators of other, newer categories of computer-related positions. In a meeting with AILA representatives, adjudicators at the California INS service center expressed concern that the explosive growth in demand for web site development and the purported ease with which a web site can be created and programmed had caused a shift in the nature of certain computer positions back to being nonprofessional, at least those where web site design is listed as the primary activity. Apparently, this view comes from commonly circulated stories about high school students, college drop-outs, and others who have not completed a four-year technical degree embarking on careers in web site development and becoming quite successful, as well as employers making statements to the effect that a college degree is not necessary to make it big on the Internet, just a few basic technical skills which can be self-taught and a desire to get ahead. Accordingly, H-1B petitions for web site developers and similar positions have occasionally been questioned or denied.

At this time the best advice is that employers be aware of the constantly shifting nature of typical job categories and qualifications in the information technology world and, to the extent possible, use the more traditional computer-related job titles and described duties that have come to be accepted as meeting the "specialty occupation" standard, like Software Engineer, Systems Analyst, Programmer/Analyst or Computer Programmer.

For example, for the web site development specialist, a "software engineer" or "programmer/analyst" title with duties to "analyze, develop and program Internet-based applications, using C++, Java, HTML, and XML," will appear more straightforward to the INS than a position simply entitled "web site developer."

There is an interesting history of non-precedent decisions from the Administrative Appeals Unit illustrating that up to 1999 Service Centers continued to deny H-1B petitions for computer programming and similar occupations, and were then overturned on appeal. These decisions are instructive strategies in preparing H-1B petitions for these kinds of jobs now. Following is a summary:

  • In 1995, the AAU overturned a denial from the California Service Center and approved specialty occupation classification for a Director of Technology for a computer control systems firm, where the position described was analogous to the group of occupations described in the 1992-93 edition of the OOH as "engineering, science and data processing managers," which were stated to normally require a baccalaureate degree in the field.
  • In 1997, the AAU overturned a denial from the Nebraska Service Center and approved specialty occupation classification for a position of computer programmer for a firm which develops and markets cross-industry application software, where the duties of the position "appeared to be analogous programming with scientific applications" contained "elements of software engineering and systems analysis."
  • In 2000, the AAU overturned a denial from the Nebraska Service Center and approved specialty occupation classification for a position as a software design engineer for a software development and support firm, on a project assigned to Microsoft Corporation.
  • Also in 2000, the AAU overturned a denial from the Vermont Service Center and approved specialty occupation classification for a position of programmer/analyst for a computer consulting firm.
Management and Executive Positions

Management and executive positions constitute another area in which INS has historically had problems acknowledging the "specialty occupation" nature of a position, causing unpleasant surprise when a petitioner had assumed that a position's high level of responsibility and generous salary made the point obvious. In one frequently discussed example, the INS denied an H-1B petition for a vice president in charge of manufacturing, despite the position's high level of supervisory authority and salary of over $150,000.

The INS is concerned that such a position could be held by someone who begins at a nonprofessional level in the company hierarchy, such as a maintenance supervisor or manufacturing technician, and who works his or her way up the ladder to a management or executive level on the basis of good organizational and people skills and accumulated knowledge of the organization. In this scenario a four year academic degree in a relevant subject is not a necessary qualification and the position does not involve "theoretical and practical application of a body of highly specialized knowledge," despite a high level of responsibility and overall importance to the business.

Thus, approval cannot be taken for granted simply because a petition describes a manager/executive-level position with significant pay. Two points are important. First, the petition should give a clear description of the function or level of personnel the manager/executive will supervise. The function should itself be one inherently involving specialized knowledge such as finance/accounting, market research, or engineering. In sales or manufacturing management positions, where the underlying function may not appear to be professional, the petition should highlight any specialized technical or engineering knowledge deriving from the nature of the particular product or service. A manufacturing or sales management position for a company which manufactures high-tech semiconductor laser components or provides engineering consulting services will be more readily accepted as a specialty occupation than one involving nonspecialized products or services. If the personnel supervised by the position are themselves specialized professionals, such as accountants or engineers, that will also be persuasive that the managerial position is by definition a specialty occupation.

Second, the petition should highlight the employer's actual academic requirement for the position, and the basis for the requirement. Many employers will require a business or management degree for personnel serving in a variety of management functions, for example, because they want to hire professionals who can apply outside academic training in modern management practices to a crucial function. Or a degree in the underlying specialty such as engineering may be required. The petition should also point out the employer's prior practice of hiring persons with the relevant degree at the same level.

As a practical matter, this issue will be most problematic for small businesses, where the INS may view a petition as overstating the job description and requirements for a manager who will actually perform multiple functions that might not all be professional.

Sales Personnel

Sales positions generally are not professional unless the petitioner can demonstrate that the position involves "specialized knowledge." This will be most readily accomplished where the product is highly technical or complex, such as in large-scale computer software, engineering, scientific, or medical areas. The petitioner must carefully describe the specialized knowledge inherent in the position, and be able to show that a degree requirement in the specialty area is consistent with prior hiring.

In many complex technical areas the salesperson is a qualified engineer who works with the customer to develop a specialized application or engineering solution involving the product. In such a scenario it will always be to the petitioner's advantage to use a "sales engineer" or similar technical title rather than the generic "sales representative."

Technical Translators

Foreign language translation and/or interpreting is another area in which the INS has a historic record of denying H-1B petitions on the basis that the positions are not "specialty occupations." The concern results from a perception that translation and interpretation merely require fluency in two languages, a skill which may come from a person's family upbringing or precollege education.

Petitions for these jobs are regularly approved, however, for translation/interpretation in highly specialized technical translation firms. Such firms normally require at least a bachelor's degree in translation/linguistics, or in a technical area that will be the subject of translation work, such as engineering, business, computer science, or medicine. Baccalaureate-level degrees in translation are not frequently earned in the U.S., but are common in Europe and South America where business is carried on at all levels of society in multiple languages so that an ability to produce fast, accurate translation of important business, legal, or technical documents is a highly valued professional skill. As the U.S. economy becomes more global, demand for this skill has increased sharply.

To be successful with H-1B petitions for these personnel, translation firms should include special evidence in two areas. First, they should provide a detailed description of the specialized knowledge inherent in the translation work. They should describe the nature of the documents and the clients for whom the work is performed in order to show that the work is highly specialized technical translation in professional areas such as computer software documentation/ localization, other engineering/technical subjects, medicine, law, business, or finance. The petitioner should describe the importance to its clients of the translation product's accuracy and cultural sensitivity. In business, legal, or technical documents, for example, major consequences can depend on fine nuances in the meaning of single words. For these reasons, the petitioner should argue, the work could not be satisfactorily performed by a person having merely fluent language skills, and instead requires the specialized academic background as well. The position should be analogized to that of a technical writer in a specialty area, which normally requires academic qualification in the subject.

Second, petitioners should include objective evidence supporting the academic requirement. This would include specific statistics or other representations as to the academic backgrounds of other persons serving in technical translation positions, to show that the employer has consistently required an appropriate degree and has not accepted persons possessing only language skills and nothing more. It is also useful to obtain statements from independent experts in the translation field certifying that, based on the nature of the documents to be translated and the client base, the petitioner's translation position is sufficiently specialized so that a bachelor's degree should normally be required.

Arts Positions

Individual artists in the U.S., arts organizations, and arts-related businesses frequently wish to assist foreign artists to obtain proper immigration status in the U.S., and inquire whether sponsorship in an H-1B position is appropriate. The H-1B program can be useful for such petitioners, but there must be a bona fide full- or part-time job offer in a "specialty occupation" position. There is no specialized job description for an "artist" to allow a beneficiary simply to live in the U.S. and practice his or her art on a self-employed basis. However, an artist with appropriate academic training may qualify for a variety of more easily defined professional positions in the arts field such as gallery or museum curator, editor or writer for an arts publication, arts administrator for an organization or institution, teacher or "artist-in-residence" instructor for a school, etc.


Since the expiration of the H-1A special nonimmigrant classification for Registered Nurses in 1995, practitioners and employers of nurses have sought aggressively to establish that such positions qualify as H-1B specialty occupations. Unfortunately, in most instances they do not. Anticipating the question, INS issued a memo in November 1995 in which it referenced the OOH to note that "there is no industry-wide standard that a registered nurse have a baccalaureate degree to perform the duties of a professional registered nurse" and that in many states the normal qualification for a nursing license is successful completion of only a two-year program and passage of the licensing examination. On that basis, the memo indicated that "it does not appear that many H-1A nurses will be eligible for H-1B classification."

The memo did indicate that nursing positions may be approvable for H-1B specialty occupation classification on a case by case basis where a petitioning hospital can establish that in the past it has hired only registered nurses possessing a bachelor's degree or higher. This argument would require detailed evidence of the petitioner's past hiring practice as well as hiring practices of similar hospitals.

In 2000, a U.S. Fifth Circuit Court of Appeals decision upheld the denial of 7 H-1B petitions for registered nurses filed by a medical contract service agency, which provided contract nursing service to hospitals and medical providers. The petitioner argued that it had always required a B.S.N. (Bachelor of Science in Nursing) degree, and had submitted evidence of its hiring practice. However, the court accepted INS' argument that a proper inquiry is into what the client contracting facility required, and the petitioner failed to establish that the medical facilities where the nurses would actually work required bachelor's degrees. Therefore, the petition denials were upheld.

It is still be possible to obtain "specialty occupation" H-1B approval for a nursing position, with good advocacy. However, the petitioner should be prepared to show that (1) the position is not a routine nursing position but rather a higher level nursing position with specialized duties that call for additional academic training, such as in an operating room or as a nursing supervisor, (2) it has always required a bachelor's degree for the position, as shown by evidence of hiring practice, or if the petitioner is a contract medical service provider the client has always required the degree, and (3) it is the objective standard in the medical field in the area to require a bachelor's degree for the level of position, as shown by hiring practices at other hospitals, or an expert opinion report.

In a 1994 AAU decision, the position of Team Leader/Nurse was accepted as a specialty occupation. Medical Technologist, Medical Research Assistant and Physician's Assistant are other positions that have been approved for the classification.

Other "Specialty Occupation" Decisions

Following is a summary of other recent decisions of the AAU or federal courts in noteworthy "specialty occupation" cases:

  • In 1998, the AAU overturned a denial from the California Service Center and approved specialty occupation classification for a position as a Foreign Law Consultant for a consulting services firm, in a position that involved advising clients on Armenian law.
  • In 1998, the AAU overturned a denial from the California Service Center and approved specialty occupation classification for a position as a Montessori pre-school teacher, for a classroom of ages 3-6. The decision found the position to be that of a school teacher as described in the OOH.
  • In 1998, the AAU overturned a denial from the Vermont Service Center and approved specialty occupation classification for a position as a mechanical engineer in an auto wheel alignment shop. On appeal the employer explained that the job involved installing and servicing specialized computer wheel alignment equipment to other wheel alignment establishments.
  • In 1999, the U.S. District Court for the Eastern District of Louisiana overturned a denial from the Nebraska Service Center, which had been upheld by the AAU, and approved specialty occupation classification for a position as a concert violinist for the Louisiana Philharmonic Orchestra.
  • In 1999, the AAU upheld a denial from the Nebraska Service Center for a position of journeyman pattern-maker for a firm which manufactures molds and patterns. The AAU found the described position equivalent to a combination of engineering technician and tool and die maker as described in the OOH, which do not require a bachelor's degree. There was also no evidence submitted that the beneficiary in fact qualified for any specialty occupation.
  • In 1999, the AAU upheld a denial from the Vermont Service Center for a position of Media Planner for a small jewelry design firm, involving "planning, coordinating and directing advertising and marketing campaigns for the company." The AAU found the described position equivalent to a combination of the positions of general manager or executive and marketing or advertising manager, as described in the OOH. The OOH, stated the decision, "finds no requirement of a baccalaureate or higher degree in a specialized area" [emphasis in original] for either position, instead accepting degrees in Business or Liberal Arts equally. Thus the subject position in the petition did not qualify as a specialty occupation. This case illustrates the difficulty with general manager positions discussed above.

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 eighth 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 or by calling 800-537-2128, ext. 9300.

For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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