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Bloggings on Immigration Law

by Jacob Sapochnick

Apr 22, 2011

Occupational Outlook Handbook and the Term of “Specialty Occupation” in context of H-1B filings

Whenever you hear about H-1B visa, you hear the term “specialty occupation”.

So, what does “specialty occupation” mean? Why is it important to prove that the proposed position is a “specialty occupation” in order to qualify for the H-1B? What role does the Occupational Outlook Handbook (OOH) published by the Department of Labor play in USCIS’ interpretation of “specialty occupation”?

This article will address these questions and other common issues that H-1B candidates and practicing immigration attorneys face in context of H-1B filings.

In order to qualify for an H-1B, you have to show that the proposed position is a “specialty occupation”. The Immigration and Nationality Act defines “specialty occupation” as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Proving that the proposed position is a “specialty occupation” is not an easy task. There is no defined list of occupations that are definitely considered to be “specialty occupations” by USCIS for the purpose of H-1B petitions. USCIS does not use a title, by itself, when determining whether a particular job qualifies as a specialty occupation. The specific duties of the offered position combined with the nature of the petitioner’s business are factors that USCIS considers.

When determining whether the proposed position qualifies as a “specialty occupation”, it is critical to address each of the four-prong definition that can be found in the Code of Federal Regulations (CFR).

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Even though the language of the regulations suggests that it is enough to satisfy any one of the prongs, it is advisable to address each of them and to submit proof for as many elements as possible with the initial H-1B filing to avoid future RFEs.

This article is going to concentrate on the first prong of the above-mentioned criteria.

What is the main reference publication that the Service turns to in its determination of a “specialty occupation”?

There are a number of publications that could potentially be used for the reference information on the industry educational requirements for a particular position. Among them are OOH and O-NET guides published by the Department of Labor.

Even though O-NET has an SVP rating and statistics on the industry’s educational requirements for various occupations, AAO has held that it does not consider O-NET to be a persuasive source of information as to whether a job requires the attainment of a baccalaureate or higher degree in a specific specialty. USCIS suggests that O-NET provides only general information regarding the tasks and work activities associated with a particular occupation, as well as the education, training, and experience required to perform the duties of that occupation.

USCIS does not consider O-NET in its determination whether a particular position is a “specialty occupation” because, as the Service states, an SVP rating is meant to indicate only the total number of years of vocational preparation required for a particular occupation. It does not describe how those years are to be divided among training, formal education, and experience and it does not specify the particular type of degree, if any, that a position would require.
Instead, USCIS turns to the Occupational Outlook Handbook (OOH), a publication of the U.S. Department of Labor for guidance on the minimum educational requirements for entry into the occupation. The OOH has information on management, professional, service, sales, construction, production, administrative, and other occupations.
It is a regular USCIS practice to heavily rely on OOH in its determination whether the proposed position qualifies as a specialty occupation. Unfortunately, at times, USCIS disregards important evidence showing that the position satisfies other criteria that otherwise would qualify the position as a “specialty occupation”.
In any H-1B case, it is always advisable to check the OOH first. If a particular job is not listed, it is recommended to seek the closest related occupations by searching SOC codes (Standard Occupational Classification) though O-NET. Even though it is critical for the practitioner to carefully classify uncommon positions under the appropriate SOC codes, USCIS does not rely upon the title’s designation. USCIS will consider the duties of the proposed position to identify the position title.

Is a bachelor’s degree a minimum requirement for entry into the occupation?

One of the tricky issues in H-1B practice is that USCIS relies on the explicit language of the OOH. Often, however, the OOH does not use imperative language in describing whether a bachelor’s degree is required for certain occupations. Rather, the OOH entry will indicate that "some" or "many" employers "prefer" a bachelor’s degree in a variety of fields. Such language leads USCIS to assume that the occupation does not require a bachelor’s degree. It is important for an immigration attorney to carefully analyze the language of the OOH before proceeding with a particular position and consider other criteria that the proffered position can meet.

Is there a requirement of a degree in a specific specialty directly related to the job duties?
Another issue that is important to note is that USCIS requires the minimum educational requirement to be a bachelor’s degree in a specific specialty. In other words, the occupation does not only have to require at least a baccalaureate level of education, but it also has to require the degree to be in a specific specialty directly related to the job duties.
Therefore, if the OOH states that a bachelor’s degree is required, but does not reference specific fields of concentration for such a degree, the position does not qualify as a “specialty occupation”, according to USCIS.

Often, USCIS notes in the RFE that, according to the OOH, the occupation does not require a baccalaureate level of education in a specific specialty as a normal minimum for entry into the occupation and that there is no clear standard for how one prepares for a career, and that the requirements appear to vary by employer as to what course of study might be appropriate or preferred. As a result, USCIS suggests that the proffered position cannot be considered to have met the criterion. This is an example of the RFE for a Budget Analyst position.

The Service suggests that any occupation that allows for more than one degree specialty will not satisfy the requirements of a specialty occupation. However, it is impossible to allocate a single degree major that all professionals in the particular position, e.g. Budget Analysts, should have. This is because the requirements of a particular job vary depending on the nature of the duties, and its specific emphasis on business management, accounting, etc. The OOH provides a range of specific specialties that Budget Analysts can be trained in. For the position of Budget Analyst, the OOH suggests that employers usually require a bachelor's degree in one of many areas, including accounting, finance, business, public administration, economics, statistics, political science, or sociology.

Interestingly, for some occupations that the Service recognizes as “specialty occupations”, the OOH also provides for a range of acceptable degrees. For example, Software Engineer has been continuously recognized by USCIS as a specialty occupation even though the position may be filled by professionals holding various but similar degrees in computer science, software engineering, physics, computer information systems, information technology, or mathematics.

Any inconsistency in USCIS’ treatment of particular positions should be carefully reviewed by the attorney and should be addressed appropriately.
Is a general degree, e.g. in business administration, considered a degree in a specific specialty related to the job duties of the proposed position?

USCIS does not favor general degrees, such as business administration or management degrees. Therefore, positions normally staffed by persons with a degree in a general field may be challenged by USCIS.

The required degree must be in a specialty field related to the position to be filled. Such interpretation is due to the fact that curriculums for degrees in specific fields, such as biology or computer science, provide the students with the requisite knowledge and expertise necessary to perform the particular tasks of the proposed positions.
In cases where a business degree is required, it is important to emphasize that the degree along with specialized experience in the field is required for entry into the particular position. For example, relevant case law points out that a position of a showroom manager is a specialty occupation, because the job required a degree in marketing or business “in addition to specialized design experience.”

It is not always possible to prove that the proposed position meets the criterion of a “specialty occupation” based on the first prong. Therefore, a counsel should submit evidence that proves other elements of the “specialty occupation” definition. If USCIS does not consider evidence that proves other prongs of the test, it is important for an immigration attorney to analyze the decision and to consider an option of filing a motion to re-open the case.

About The Author

Jacob J. Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.

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

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