H-1B Visa Requirements

H-1B “Specialty Occupation” Requirements

One of the major H-1B visa requirements is that the offered H-1B job is within a H-1B specialty occupation.  Not all jobs are qualified for a H-1B  that is specialty occupation and it is important to establish that the “job offer” in question is considered a “H-1B specialty occupation” as defined by the Immigration and Nationality Act. The term “specialty occupation” is similar to the definition of “professional” but further requires:

1. the attainment of at least a bachelor’s degree, or
2. years of employment experience that are determined to be the equivalent to a bachelor’s degree.
3. the degree requirement for the offered job is common to the industry or the job is so complex that it requires individual with at least a degree to fulfill such position.

H-1B Specialty Occupation exceptions – Fashion Models

Fashion Models, though do not meet the the standard of “H-1B specialty occupation”, nevertheless are qualified for the H-1B category.  In order to be qualified, they must possess ‘distinguished merit and ability” in their field of endeavor.

 

H-1B visa requirements regarding positions and Job titles

The nature of the H-1B 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 “H-1B specialty occupation”, the job position/ job title itself must require the H1B worker to perform duties that relevant to the related H-1B job position.  In essence, the H-1B job duties must match the H-1B position and such position must be one that is considered “H-1B 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 H-1B specialty occupation.

Positions that are not clearly in H-1B 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 H-1B purposes, it is helpful if the following criteria can be proven:

1. the entry-level for the position requires at least a bachelor’s degree or higher degree;
2. the employer’s prior practice and the “industry norm” for same positions actually require a degree;
3. the position did not require professional skills but has developed over time to the point that it is now profession;
4. the position is so complex or unique that it requires the services of a profession.

 

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You may be interested in the following pages:

• H-1B Specialty Occupation requirements
• H-1B employee qualifications
• H-1B Cap
• F-1 to H-1B 
• H-1B Extension
• H-1B Transfer

 

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