The H-1B Series: Part 2 of 6 (Encore)
A. 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.
B. More On Making Your Case For An H-1B "Specialty Occupation"
Straightforward Specialty Occupations: The "Easy" Cases
For petitions in these recognized fields, the employer should include its job description and statement of requirements as described above, and the balance of the petition will generally be straightforward and approvable, provided that the information provided is not unusual nor inconsistent with the Labor Condition Application and the beneficiary's qualifications.
It is always to the employer's advantage, where possible, to use the most straightforward, generally recognized, appropriate professional title for a job. Some employers tend to use more individualized, uncommon-sounding titles tied to a particular in-house function or a preferred scheme of internal organization. An unusual title that does not immediately specifically identify a job may cause confusion or delay because the INS examiner will have to probe deeper in the supporting evidence to see if the job is really a specialty occupation.
For example, a software development company might use the title "technical account manager" for a position that requires a qualified software engineer to be on call to work with a specific group of clients whenever they need professional software engineering services related to the company's product. In another example, a growing Internet company might assign the title "business development specialist" to a person charged with undertaking the computer programming necessary to develop a new function for the company's e-commerce web site and put it on line. In both cases the H-1B petition should be approvable as involving computer-related specialty occupations once the examiner reviews the actual job description. However, the respective titles do not clarify the job function, and actually suggest sales management or other business duties rather than computer occupations. In this example, using a straightforward "software engineer" title would avoid any question and help expedite processing of the case. Or the employer might use its internal title followed by the broader occupational category in parentheses, such as "technical account manager (software engineer)."
This technique is particularly helpful for small companies, startups, or growing businesses in a new sector area of the economy, which tend to operate informally and have many people performing multiple functions with less-defined jobs and hierarchy. As these businesses grow and mature, development of more formalized job descriptions with regular professional titles is a good strategy that will position them more easily to sponsor H-1B workers.
Establishing the "Specialty Occupation" in Complex Cases
In other job situations the "specialty occupation" standard might not be so clear. These cases require more thorough analysis of the job circumstances, and careful attention to gathering additional evidence and preparing good arguments. There are a number of resources that the employer can turn to, including the Department of Labor references described in the previous article, evidence of normal industry practices, particular details about the specialized duties of the position offered, and the employer's own usual hiring practices for the position.
One aspect of the "specialty occupation" argument that requires more attention occurs when an employer's job category arises in a new sector of the economy, and does not fit into any pre-existing standard definition. The DOT and OOH publications are good starting points to find evidence that a position is professional, but the information they contain is frequently out of date. The current fast-paced information age fosters rapid change in the American workplace, in which completely new types of jobs are being created. Even for traditional jobs the minimum requirements needed to perform job duties are becoming more complex. These changes occur faster than they can be documented in traditional reference sources.
Other situations which may require more careful attention include the following:
It is to the employer's advantage to perform a strategic analysis before preparing the H-lB petition. Once the employer gathers the evidence, it can then be satisfied that its job meets the INS standard, and make an informed judgment about how much evidence to actually submit to the INS. Without this preparation, the employer may be required to gather evidence in response to an INS "Request for Evidence" ("RFE") sent after initial review of the petition. The Request for Evidence typically states that the petitioner's initial submission did not establish the position to be a specialty occupation, and asks a series of detailed questions based on the regulatory criteria. By the use of careful issue-spotting and planning, the petitioner can prepare an initial submission that will be approved upon submission without amendments, and avoid the extra delay and expense of responding to a Request for Evidence.
The Code of Federal Regulations sections quoted previously suggest a set of particular criteria around which the petitioner can focus its supporting evidence. Some of the criteria appear objective, calling on the petitioner to justify its degree requirement through reference to common industry practice or evaluation of the position from independent sources. Others are more subjective, focusing on particular characteristics of the employer and its practices. Restated, the criteria are:
As described above, the best place to begin accurately to depict this description is in the job title itself. Beyond that, the job duties and subject area of the required degree as described in the supporting evidence must be consistent with the normal duties and requirements associated with the profession.
The second criterion becomes important where a position does not necessarily fit into a standard occupational category in the common reference sources, where it does fit into such a category but standards in the industry have changed, or where the INS may not be satisfied with reference to those sources and asks for more particularized information. In this criterion the focus is on actually gathering evidence from "similar organizations" - i.e., other employers in the same business - about their degree requirements for positions "parallel" to the one at issue, to show that the degree requirement is "common to the industry" for the job.
It might be sensitive or difficult to approach competing businesses for this type of information. If a relevant trade association exists, that is the best place to start. Companies in the same line of business should recognize that it is in their long-term interest to create a record whereby the INS has accepted a common position as a "specialty occupation," even for a competitor. If an employer does not wish to approach other businesses for help, it might be able to find publicly available sources of information that will support the point.
Specific types of evidence that can demonstrate the common industry standard include the following:
The third and fifth points are essentially the same. They focus on characteristics of the position itself, and involve arguing that regardless of the other criteria, the position described in the petition is unique and so specialized and complex that by its very nature it requires attainment of a bachelor's degree or higher in the specialty. As a strategic matter, it is easier for the employer to make objective arguments based on the regular reference sources or "common industry practice" points described above. However, certain circumstances might indeed involve such specialized and complex duties that the average requirements of the occupation from other sources do not provide suitable comparison. In these circumstances the job description provided in the supporting evidence assumes greater importance.
To successfully use the "complex and unique duties" strategy, the employer must provide a job description that is extremely detailed, covering every conceivable relevant point about the employer, its products or services, the precise day-to-day duties of the position, and what makes them complex and unique. As suggested above, the duties should emphasize:
Finally, regarding the fourth point, the employer would demonstrate that regardless of the other criteria, it has always required a bachelor's degree or equivalent for the position. For large employers, this can be presented in the form of statistics about past hiring practices in the position and the educational qualification of current employees. For smaller employers, a simple list of current or past employees in equivalent positions and their educational backgrounds will suffice. Other documents submitted to support this criterion of evidence could include:
Similarly, if the employer requires simply a bachelor's degree with no regard for a particular area of concentrated study, the job may not satisfy the specialty occupation standard. The employer may truthfully say that it has always required a bachelor's degree, but admit upon review that it has accepted degrees in a wide variety of subject matters. Unless the employer can demonstrate how each of the major fields of study it has accepted are specifically relevant to the specialized duties in the position, then this evidence of prior hiring practice will not be helpful and might in fact hurt the petitioner's case.
C. Discussion of the "Specialty Occupation" Standard and Particular Occupational Categories
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.
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 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."
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.
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:
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 a series of articles by George N. Lester IV 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. This article is a consolidated reprint of Articles 6-8 which originally appeared in each Monday's issue beginning in the August 26, 2002 issue of Immigration Daily.
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