Law Office of Irwin M. Avelino

H1b Visa Requirements Relating to Job Offer and Employee Qualificaitons

H1b visa requirementsH1b Visa Requirements can be viewed as a two-step analysis:

  1. Is the H1b job a “specialty occupation”?
  2. Is the foreign prospective employee qualified to perform the duties of the H1b job.

1.  H1b Visa Requirements for a “Specialty Occupation”

Immigration law defines the term “specialty occupation” as an occupation that requires:

  1. theoretical and practical application of a body of highly specialized knowledge, and
  2. attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The term “specialty occupation” is further defined under the H1b visa requirements as:

An occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.  The occupation must require a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Put another way, a “specialty occupation” under the H1b visa requirements must meet one of the following criteria:

  1. A bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a bachelor’s degree;
  3. The employer normally requires a bachelor’s degree or its equivalent for the position; or
  4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Please note that the term “degree” in the above H1b visa requirements means not just any bachelor’s or higher degree, but one in a specific specialty that is directly related to the H1b job.

To determine whether a particular job qualifies as a specialty occupation under the H1b visa requirements, USCIS does not simply rely on a position’s title. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors to be considered. USCIS must examine the ultimate employment of the foreign national employee, and determine whether the position qualifies as a specialty occupation. Cf: Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). The critical element is not the title of the position nor an employer’s self-imposed standards. The key issue is whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor’s or higher degree in the specific specialty as the minimum for entry into the occupation.

Is the foreign national qualified to perform the duties of the  job under the H1b visa requirements?

To prove that a foreign prospective employee is qualified to perform the duties of a specialty occupation, the petitioning employer must establish that the employee meet one of the following H1b requirements:

  1. Hold a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  2. Hold a foreign degree determined to be equivalent to a United States bachelor’s or higher degree required by the specialty occupation from an accredited college or university;
  3. Hold an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  4. Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

As can be seen, the H1b visa requirements are quite complex when it comes to analyzing the job offer as the qualifications of the prospective foreign employee.

Call our office for a FREE consultation on the H1b visa requirements.