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What is an H1B speciality occupation?

What is an H1B speciality occupation?

The H1B speciality occupation visa is a popular choice for skilled migrant workers and American employers alike. It gives overseas graduate-level workers the opportunity to be sponsored in a highly skilled job role, not only gaining vital work experience, but getting the chance to enjoy life in the USA. Equally, it provides US sponsors with a pool of global talent from which to recruit and temporarily fill any skills gaps in their workforce.

This visa route covers a wide range of industry sectors and all kinds of different job roles. However, it is not uncommon for employers to assume this visa route is for tech workers only. While sponsored IT job roles do account for a large proportion of the H1B petitions filed by US employers each year, there are many other jobs that would also qualify as H1B specialty occupations.

The following guidance for both sponsors and applicants examines in detail the different H1B visa jobs, from the requirements that must be satisfied to qualify as a “speciality occupation” to the implications of any job role not meeting these requirements.

 

What are the requirements for H1B speciality occupations?

The H1B visa is for overseas “speciality occupation” workers who have a job offer in the United States from a US sponsor. The questions is: what is an H1B speciality occupation?

Under the rules, as a minimum requirement, a H1B speciality occupation must involve:

  • the theoretical and practical application of a body of highly specialised knowledge, and
  • the attainment of a bachelor’s or higher degree, or its equivalent, in the specific speciality.

To qualify as a speciality occupation under H1B nonimmigrant classification, the job role on offer must also meet one of the following requirements:

  • the minimum entry requirement for the position is normally a bachelor’s or higher degree, or the equivalent of either one of these
  • the degree requirement must be common to parallel positions amongst similar organisations in the industry sector or, in the alternative, the job must be so complex or unique that it can only be performed by someone with a degree
  • the employer normally requires a degree, or its equivalent, for the position
  • the nature of the specific duties to be undertaken for the job role must be so specialised and complex that the knowledge required to perform those duties is typically associated with having either a bachelor’s or higher degree.

This essentially means that the job being offered by the US sponsor must require at least a US bachelor’s degree, or its equivalent, in a specific field, or the duties associated with the job must be sufficiently complex to require at least a bachelor’s degree in a relevant field.

 

Examples of eligible H1B speciality occupations

As the job role requirements for a H1B speciality occupation are relatively wide, the job does not necessarily need to demand a computer science degree. Sponsored IT job roles account for a large occupational category of the H1B petitions filed by US employers each year, where the number of H1B petitions approved in the 2021 fiscal year for workers in computer-related occupations was 68.8% of approved petitions. However, H1B speciality occupation job roles are not limited to just “high tech” jobs.

In theory, any graduate level job that normally requires either a bachelor’s or higher degree as a minimum entry requirement can potentially qualify as a speciality occupation. H1B jobs can also include various other job roles, but the nature of the specific duties required to be undertaken must be so specialised and complex that the knowledge needed to perform those duties is normally associated with the attainment of a bachelor’s or higher degree. In practice, this means that a H1B speciality occupation typically requires at least a bachelor’s degree within the specific speciality, plus the use of highly specialised knowledge in order to successfully perform the duties of the required role.

US Citizenship and Immigration Services (USCIS) publishes an annual report on the “Characteristics of H-1B Specialty Occupation Workers”, including statistics each year on the employers that file H1B visa petitions and the occupations that have been approved by USCIS for H1B visas. Below we set out some examples of the types of occupational categories and job roles that have been approved as H1B speciality occupations:

  • Computer-related occupations (such as system analysts and computer programmers)
  • Occupations in architecture, engineering and surveying (such as architects, civil engineers and structural surveyors)
  • Occupations in administrative specialisations (such as senior executive assistants or public relations managers)
  • Occupations in education (such as school teachers and college/university educators)
  • Occupations in medicine and health (such as physicians, surgeons and psychologists)
  • Occupations in mathematics and physical sciences (such as economists, statisticians, chemists, physicists and geologists)
  • Occupations in life sciences (such as biologists, zoologists, botanists and biochemists)
  • Managers and officials (such as sales and distribution managers)
  • Miscellaneous professional, technical and managerial occupations (such as market research specialists or cybersecurity specialists)
  • Occupations in social sciences (such as rehabilitation workers or counsellors)
  • Occupations in art (such as graphic designers and other artists)
  • Occupations in law and jurisprudence (such as lawyers and foreign law advisors)
  • Occupations in writing (such as journalists and editors)
  • Occupations in museum, library and archival sciences (such as curators and archivists)
  • Occupations in entertainment and recreation (such as radio presenters and TV broadcasters)
  • Occupations in religion and theology (such as hospice chaplains and youth pastors)

USCIS also maintains a database, the H1B Employer Data Hub, which includes a list of all employers who have filed petitions to employ H1B migrant workers between 2009 and 2022. The drop-down industry codes (that can be selected to search the database) provide an idea of the broad range of industry sectors in which petitions have been filed, including:

  • Agriculture, forestry, fishing and hunting
  • Mining, quarrying, and oil and gas extraction
  • Utilities
  • Construction
  • Manufacturing
  • Wholesale trade
  • Retail trade
  • Transportation and warehousing
  • Information
  • Finance and insurance
  • Real estate, and rental and leasing
  • Professional and technical services
  • Management of companies and enterprises
  • Administrative and waste services
  • Educational services
  • Health care and social assistance
  • Arts, entertainment and recreation
  • Accommodation and food services
  • Other services
  • Public administration
  • Industry sector unknown.

An employer’s industry sector is not necessarily representative of the occupation(s) of the migrant workers that it employs. For example, a hospital would be classified in the health care and social assistance sector but it might employ H1B workers who are lawyers, accountants, IT specialists and so forth, in addition to medical professionals. Still, this data, taken together with the information set out in the USCIS annual report on the “characteristics of H1B specialty occupation workers”, can provide a useful starting point when looking to establish which types of jobs may qualify as a H1B speciality occupation.

 

How is a job role assessed for a H1B speciality occupation?

A job role will be assessed at the point at which the US sponsor files a petition with USCIS, showing that the position they are offering falls within a particular speciality occupation.

To be granted an H1B petition, which will then allow the overseas worker to go on to apply for a H1B visa, the job on offer must meet the occupation-specific requirements. As USCIS is responsible for determining eligibility for the classification sought, it will be for the USCIS caseworker deciding the matter to determine whether the employment on offer constitutes a speciality occupation. It will also be for that caseworker to decide whether the applicant named in the petition is qualified to perform services within that occupation.

In addition to the occupation-specific requirements for a H1B visa, there are also applicant-specific requirements that must be met. For an applicant to qualify to work within a speciality occupation, they must meet one of the following requirements:

  • hold a US bachelor’s or higher degree from an accredited university or college, as required by the speciality occupation in question
  • hold a foreign degree equivalent to a US bachelor’s or higher degree from an accredited university or college, as required by the speciality occupation in question
  • hold any required licence, or other official permission, to practice the speciality occupation in question in the US state in which employment is sought
  • have either education, specialised training and/or progressively responsible experience equivalent to the completion of a US bachelor’s or higher degree in the speciality occupation in question, ‘and’ have recognition of expertise within that speciality through progressively responsible positions related to that speciality.

This essentially means that the H1B worker must have a relevant degree, or equivalent combined education and/or experience. For example, an entry-level civil engineer must have at least a bachelor’s degree in civil engineering where, not surprisingly, a degree in accounting will not qualify that worker for an H1B visa to work as a civil engineer.

 

What are the implications if a job role is found not to be eligible?

The job role requirements for a H1B speciality occupation are central to the successful approval of a petition by a US sponsor. This means that if USCIS is not satisfied that the job role meets the requisite requirements for a H1B visa, the petition will be denied. In turn, this means that the visa applicant will not be able to apply for a H1B visa for that role.

However, USCIS may issue what is known as a Request for Evidence (RFE) if the petitioner has failed to establish that the position on offer to the beneficiary qualifies as a speciality occupation. In these circumstances, the petitioner will be given the opportunity to provide additional evidence prior to USCIS approving or denying the petition. This is preferable to an outright denial, but will typically require expert assistance from a qualified immigration specialist to help prepare a response. It can also be helpful to commission an expert opinion letter written by a professor or industry expert to explain why the duties of the position on offer require no less than the equivalent of a bachelor’s degree, as well as identifying similar positions offered by other companies that also require a degree.

In some cases, USCIS may also require additional evidence to connect the beneficiary’s degree to the job requirements. The petitioner will need to detail how the job relates to the beneficiary’s degree or how their educational background led the beneficiary to their specialised knowledge. It will also be necessary to demonstrate how the beneficiary’s specialised knowledge is essential to perform the duties of the job role. Equally, in cases where the petitioner is relying on the beneficiary’s combined education and experience, it will be necessary to provide substantiating evidence as to why that individual is qualified.

The petitioner must submit evidence of the beneficiary’s education credentials, with English translations where applicable, at the time they file the petition. At this stage, so as to avoid an RFE, or even an outright denial, it can be best to carefully consider what additional evidence might be requested by the USCIS caseworker and provide this at the same time.

 

Advice on H1B speciality occupations

The speciality occupation requirement can cause all sorts of headaches for both sponsors and applicants alike. For the H1B sponsor, whilst the published guidance provided by USCIS can provide a good starting point, they may have a job role that is relatively uncommon or does not fit neatly into a recognised or pre-approved speciality category.

For the H1B applicant, they may be best approaching employers with previous experience of filing H1B petitions and knowing which roles will qualify. It is then a question of matching the applicant’s background to any available job roles and job descriptions, where care must be taken to ensure that they have the relevant qualifications and experience.

Importantly, even if a job role meets the requirements for a H1B speciality occupation, there are other requirements that must be met by the applicant, where approval of an H1B petition does not guarantee issuance of an H1B visa or admission to the US in H1B status. There is also an annual cap on the number of H1B visas granted each year.

It is therefore important to seek advice from an immigration specialist, both for the US sponsor filing a H1B petition for the first time and for an applicant applying for a H1B visa. In this way, advice can sought from the outset as to the prospects of meeting the H1B speciality occupation requirements, as well as overcoming any other H1B hurdles.

 

Need assistance?

NNU Immigration’s US immigration attorneys provide specialist guidance on all aspects of the H1B visa, including eligibility, sponsorship requirements, and application timings and processing. For expert advice, contact us.

 

H1B Specialty Occupation FAQs

What is an H-1B speciality occupation?

An H-1B speciality occupation is one which requires both the theoretical and practical application of a body of highly specialised knowledge, and the attainment of either a bachelor’s or higher degree, or its equivalent, in the specific speciality.

What are specialty occupations?

Specialty occupations are typically graduate-level job roles which require theoretical or technical expertise. These cover job roles in a wide range of industry sectors including IT, education, healthcare, accounting, engineering, business specialties and the arts.

Who gets speciality occupation RFE?

A speciality occupation RFE (Request for Evidence) may be issued by US Citizenship and Immigration Services to any petitioner who has not been able to establish that the position on offer to the beneficiary qualifies as a “speciality occupation”.

Is H-1B only for professionals?

The H-1B visa is not exclusively for professionals, such as accountants and lawyers where, in theory, any graduate level job that normally requires either a bachelor’s or higher degree as a minimum entry requirement can qualify as a speciality occupation.

This article does not constitute direct legal advice and is for informational purposes only.

By Nita Nicole Upadhye

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For specialist advice on a US immigration or nationality matter for your business, contact our US immigration attorneys. 

For specialist advice on a US immigration or nationality matter for your business, contact our US immigration attorneys.