Definition of “Specialty Occupations”
Not all jobs are qualified for a H1B petition because it is available only to alien workers filling positions in “H1B specialty occupations” for which the alien workers have the pre-requisite qualifications. Therefore it is important to establish that the “job offer” in question is considered a “H1B specialty occupation” as defined by the Immigration and Nationality Act. The term “specialty occupation” is similar to the definition of “professional” but further requires:
- the attainment of at least a bachelor’s degree, or
- years of employment experience that are determined to be the equivalent to a bachelor’s degree.
H1B Specialty Occupations exceptions – Fashion Models
Fashion Models, though do not meet the the standard of “H1B specialty occupation”, nevertheless are qualified for the H1B category. In order to be qualified, they must possess ‘distinguished merit and ability” in their field of endeavor.
H1B positions and Job titles
The nature of the H1B position determines whether it is a specialty occupation. The requirement that an H-1B position be in a specialty occupation can be met easily in some cases because the position involved already been held by the United States Immigration and Citizen Services (USCIS) to be in a profession such as engineers, scientists, PhD researchers etc. However, there are gray areas around some of these so called “H1B specialty positions” because to be classified as a “H1B specialty occupation”, the job position/ job title itself must require the H1B worker to perform duties that relevant to the related H1B job position. In essence, the H1B job duties must match the H1B position and such position must be one that is considered “H1B specialty occupation”. Thus, an example of a “teaching” positions in some daycare settings may not be considered specialty occupation even though “Teachers” are generally considered a specialty occupation as they require at least a bachelor degree as a minimum entry level requirement. However, since the setting of such teaching positions are in a daycare facility as opposed to a traditional school environment and the duties involved are more of a care taker than a teacher, though the position itself sounds “professional” but because the skills involved in that particular position are not commensurate with professional standing, it will not be categorized as a H1B specialty occupation.
Positions that are not clearly in specialty occupations
When a position is not one of the specialty occupations commonly recognized by the USCIS, it is necessary to demonstrate that the proposed position is in a specialty occupation. In construing specialty occupation for H1B purposes, it is helpful if the following criteria can be proven:
- the entry-level for the position requires at least a bachelor’s degree or higher degree;
- the employer’s prior practice and the “industry norm” for same positions actually require a degree;
- the position did not require professional skills but has developed over time to the point that it is now profession;
- the position is so complex or unique that it requires the services of a profession.