We are inching closer to April, which means many people are in the beginning stages of preparing to file an H-1B petition in the cap (aka the lottery). One of the most important things to look at before you begin is whether the position you are being sponsored for is considered a “Specialty Occupation.” If it is not, you may end up making it through the lottery only to end up with a denial. This must be considered early on, before the LCA (Labor Condition Application) is submitted because it must be submitted with the proper “SOC code” associated with the offered position. I have done many consultations with people who received RFEs or denials due to poor selection of job title, SOC code, and/or a bad job description, all of which are done at this early stage of the preparation process.
Specialty Occupation
The H-1B nonimmigrant classification is available for an alien to perform services in a “specialty occupation.” To qualify as a specialty occupation, the position must meet one of the following requirements:
(1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the 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 the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree. See 8 CFR 214.2(h)(4)(iii)(A).
Although the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation, approval or denial often comes down to a judgment call by the adjudicating officer. The DOL’s Occupational Outlook Handbook is often consulted to determine whether the position offered qualifies as a specialty occupation. The adjudicating officer will not look at the job title alone, but instead consider all the facts surrounding the petition like :
- The beneficiary’s education and work experience
- The nature of the petitioner’s business
- Industry practice
- Salary (both offered to the beneficiary and typical for the industry).
If the information submitted in the petition is not clear that the job is a specialty occupation, USCIS will often issue a Request for Evidence to obtain a more detailed job description, documentation of other workers in the same company who also hold at least a bachelor’s degree in a specific field, job vacancy announcements used for the offered position, etc.
So, before filing, it is important to look at what is normal in the industry for the job being offered as well as what the company has normally required for job applicants to qualify. Further, if the job just requires a bachelor’s degree, but not in any specific field, it will not be enough to qualify as a specialty occupation. The degree required by the job must be in a specific field of study (and make sure your education qualifications are in line with that degree requirement).
For more information on the requirements for a successful H-1B petition, check out my free e-book at http://immigrationgirl.com/get-your-free-ebook-from-immigrationgirl/
You can also check out my timeline for FY 2018 H-1B filings to make sure your application is on track for filing on time at: http://immigrationgirl.com/lottery/