Immigration attorneys suggest strategy to prove job needs special skills.
For the past couple of years, USCIS has been taking a position in many H-1B visa applications that the occupation for which a petition for H-1B is sought, must be classified as specialty occupation.
A number of visas are rejected on the ground that the job does not require specialty occupation. There have also been instances where a visa earlier issued for specialty occupation has now been rejected.
The spate of specialty occupation rejections has left many wondering what exactly is specialty occupation and is USCIS over-stepping the actual definition of specialty occupation.
Zachary Taylor of RN Law Group says a strategy to prove specialty occupation should be devised early on in the H-1B process. Failure to do so can lead to RFEs or Request for Evidence or even denial of the H-1B petition. Here are some FAQs:
What is a Specialty Occupation?
The Immigration and Nationality Act (INA) defines specialty occupation as an occupation that requires (a) Theoretical and practical application of a body of highly specialized knowledge (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 United States. To qualify for the much in demand H-1B visa, the job offered must also meet one of the following criterion to be classified as specialty occupation.
1. A bachelor’s or master’s degree or its foreign equivalent is the minimum requirement for the job
2. The degree requirement is common to the industry in parallel positions amongst similar organizations
3. The employers normally require a bachelor’s degree or equivalent for the position
4. The nature of job duties qualifies to be so specialized and complex that the knowledge required to execute the duties calls for a baccalaureate or higher degree.
Immigration lawyer Zachary Taylor of RN Law Group says, “The primary way to demonstrate an H-1B worker is indeed qualified for the position is to show that the H-1B worker has a US bachelor’s degree or higher in a field that is relevant to the specialty occupation.
“For example, a person with a US bachelor’s degree in Computer Science or Software Engineering would likely be qualified for a Software Developer position. People with foreign degrees that are related to the specialty occupation may also be qualified for H-1B specialty occupation as long as they are able to demonstrate that their foreign degrees are the equivalent to a US bachelor’s or higher degree. There are a number of education credentialing services that provide such evaluations.”
Taylor adds, “A less common, but sometimes necessary way to prove an H-1B worker is qualified for the specialty occupation requires using a combination of education and professional experience. In the H-1B context, three years of relevant progressive professional experience may be equated to one year’s worth of study at the bachelor’s level.
“This means that an H-1B worker with a somewhat unrelated degree may be able to show they are qualified for an H-1B specialty occupation if they have three years or more of progressive professional experience that is relevant to the H-1B specialty occupation.”
What occupations qualify for H-1B visa?
Defined by INA, some of the occupations that typically qualify for H-1B visa include professions such as architects, lawyers, engineers, surgeons, physicians and teachers in schools and colleges.
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