Recent Challenges to the H-1B Specialty Occupation Definition

H-1B nonimmigrant visas have impacted the US economy and the professions and lives of hundreds of thousands of foreign workers over the years. These visas are designed for those with skills that classify as a “specialty occupation,” but that definition has evolved and continues to change depending on the political and social climate of the country. Recent challenges to the H-1B specialty occupation are in process, and if you’re applying for a new or renewed work visa, you should know what these changes mean for you.

The Specialty Occupation Definition

The definition of a specialty occupation has stayed consistent since the beginning of the H-1B visa program. Per USCIS, this refers to any occupation that requires both of the following:

●     Theoretical and practical application of a specific body of specialized knowledge,

●     The attainment of a bachelor’s or higher degree in the specialty or an equivalent.

These two factors must be met for a person to obtain an H-1B specialty occupation visa and enter the US for work purposes.

Within this definition, there are more detailed requirements. A bachelor’s or higher degree must be the normal minimum entry required in the industry for the position. For instance, a medical degree is the minimum entry requirement for a healthcare provider across the industry. An alternative to this is that the position is unique or complex and can only be completed by someone with the proper education to do the work.

Employers who normally require the degree or its equivalent for the position and can prove this can submit a Labor Condition Approval request to the Department of Labor, as well. 

In some cases, individuals who do not have the proper education but have equivalent experience may obtain an H-1B visa. If they can demonstrate evidence that they have the expertise and gained such knowledge through positions relating to the specialty, a USCIS officer can choose to use that in place of the degree. Generally, this equates to three years of experience for every one year of a college education.

The Changing Specialty Occupation Requirements

Due to so many changes in the past few years, processing immigrant petition forms has become complex. To prevent fraud and ensure only legitimate petitions are approved, USCIS increased the scrutiny level of each petition, including the jobs that meet specialty occupation requirements.

In the past, it was easier to get approved under loopholes and vague wording in the terminology. Individuals with bachelor’s degrees completing jobs that didn’t require the degree could feasibly obtain an H-1B visa. Since 2009, USCIS has increased its standards, requiring all criteria to be met for a specialty occupation job.

Now, they are narrowing the definitions of terminology to clarify what each part of the specialty occupation means. Previously, the term “related field” could be subjective. Court cases since 2009 have slowly begun to add more clarification, eliminating jobs that could accept various types of degrees rather than one or two specific ones.

What This Means for You

Before applying for an H-1B petition, talk to your immigration attorney to ensure there is a clear, direct link between your degree and the job. If it’s a vague offer, such as an assistant professor, you’ll need to ensure you can document the skills you have and the reason such a job is a specialty occupation.

Your immigration attorney can also help you complete the forms necessary to prove your eligibility. In addition to Form I-129H, you’ll need to include Form I-129 H-1B Data Collection Supplement, the approved Labor Condition Application, and evidence of your eligibility for the specialty occupation.

Should you wish to use the benefit of the H-1B visa to bring your spouse and/or dependent children with you, they’ll need to submit documentation and obtain H-4 visas. While the employer is responsible for the fees related to your visa, you’ll need to pay for any other fees for your family. If a family member is eligible for employment, they’ll also need to complete an employment authorization document request.

What’s Next?

Filing a petition for an H-1B visa is complicated, no matter what specialty occupation you’re applying for. When that occupation doesn’t have a direct link to your degree, it can get even more challenging. But at Visa2US, we’re ready to take on those challenges for you and help you successfully obtain a work visa.

If this is your first H-1B visa or your degree is not from a US institution, you’ll need to jump a few more hurdles before you start working. Let our experts in immigration law guide you and make the process simpler overall. Our professional legal help at Visa2US is available 24/7 to answer your questions and get you on the right track for your next career steps. 

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H-1B Visa

H-1B Visa

H-1B visa is used by businesses and organizations in the United States to employ foreign nationals with the preferred qualifications, knowledge, and expertise in a role.

I-485 Adjustment of Status

I-485 Adjustment of Status

Submit a form I-485 application to apply for lawful permanent resident status.

National Interest Waiver (NIW)

National Interest Waiver (NIW)

An applicant must either hold an advanced degree or have an exceptional ability in their field that would substantially benefit the U.S. to be qualified.