As the H-1b filing deadline approaches, a frequent question I get is what the definition of Specialty occupation is. A typical question is: I have open positions in Columbus and Cleveland, Ohio, they will assist an engineer, is an Assistant Engineer job a "specialty occupation? and can we file an H-1b visa petition for this person ?"
Nothing is more elusive than what is actually meant by that term. Some occupations, such as professors, accountants, or engineers, fall easily into the meaning of specialty occupation, but others are not so clear. For such occupations, many factors must be considered in determining whether specialty occupation work is involved.
"Specialty occupation," as defined by the Immigration and Nationality Act, means an occupation that requires "a theoretical and practical application of a body of highly specialized knowledge," and that the "attainment of a bachelor's degree or higher" is usually a prerequisite to entry into the profession. It is not always clear that a particular position meets these two requirements. However, federal regulations give further guidance.
An employer can show that a given occupation is in fact a specialty occupation by showing one of the following:
(1) a bachelor degree or its equivalent is normally the minimum requirement for entry into the particular position;
This is per se evidence that the position requires "a theoretical and practical application of a body of highly specialized knowledge."
(2) such a degree is commonly required in the industry in similar positions and in similar organizations, or the position in question is so complex or unique that it can be performed only by an individual with a degree;
The employer can search job-posting websites and provide copies of advertisements for similar positions in other organizations requiring a bachelor's degree.
(3) the employer normally requires a degree or its equivalent for the position; or
The employer can provide past advertisements for the position or similar positions, and evidence that current employees in those positions meet the degree requirements.
(4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
A good resource to consult when considering the nature of the duties of a given position, as well as whether a bachelor's degree is the normal minimum requirement for entry into the position, is the Occupational Outlook Handbook (OOH). The book is compiled by the U.S. Bureau of Labor Statistics and is considered authoritative for H-1B purposes; it is revised every two years.
Employers should note that a position will not necessarily be held to be a specialty occupation merely because the position's title is one of an established specialty occupation or because the employer shows that it always requires a bachelor's degree for the position. A description of the duties related to the position must be submitted with the evidence and the reviewing immigration officer will probably find the corresponding occupation in the OOH, without regard to the title.
