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H-1B Regulatory Requirements and Updates

Thursday | November 8, 2018 | by Lucy Cheung

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Many international students and scholars in the U.S. hope to find employment in the U.S. that will allow them to gain the skills needed to secure permanent work (in the U.S. or abroad). For most graduates, the H-1B nonimmigrant category is a natural progression because many will graduate with at least a bachelor’s degree or have already earned an equivalent degree from their native country.

What is a “Specialty Category?”

According to U.S regulations, a specialty occupation is one that requires the application of highly specialized knowledge. As a minimum for entry, such occupations require a bachelor’s degree or higher (or its equivalent) in a specific specialty. The words “in a specific specialty” have been added in recent years by U.S. Citizenship and Immigration Services’ (USCIS) interpretation of the H-1B classification.

To be a specialty occupation, the job must meet one of the following requirements:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position;
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position;
  • The nature of the specific duties is 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.

For many years, USCIS, the benefit division of the U.S. Department of Homeland Security, had accepted that the specialty occupation requirement for an H-1B could be satisfied as long as the duties for the position require the knowledge of someone with a bachelor’s or higher degree, or its equivalent. Students with a degree that was not directly related or only slightly related to the job description used to be able to qualify for the H-1B.

In the past few years, USCIS has changed its interpretation of the H-1B regulations by adding the wording “in a specific specialty” to the requirement. Now, an employer not only needs to show that they need someone with at least a bachelor’s degree or higher, or its equivalent to do the job, it also needs to show that the degree requirement for the job is in a specific specialty related to the duties or position.  For some H-1B cases, USCIS is looking for an industry or normal standard that a job requires a single degree.

This new hurdle has created issues for employers looking to fill positions that need perspectives from many different specialty fields.  Through this new interpretation, USCIS has narrowed each professional position to a single or limited number of educational fields. Even with employers who are willing to go through the challenging process of filing for the H-1B, it has become more difficult to get to the endpoint: an H-1B approval.

How to Make a Good Case for an H-1B Classification

With USCIS becoming more and more restrictive in its review of cases, it is a good idea to speak with a knowledgeable immigration attorney during your studies to familiarize yourself with the detailed requirements for the H-1B.  If you have a willing employer who wants to work with you, you can ask your employer or the HR manager to contact or join you at the meeting with the attorney.

Because your employer technically files the H-1B petition, you will need cooperation from your employer every step of the way.

For existing jobs, try to find out if each employee who held the position before you has similar degrees, or if the employer has always required someone with a specific degree to fill the position. Every employer is different in terms of structure and familiarity with the immigration process. Check early to ensure you are prepared!

Final Tips

Having a job that is a specialty occupation, as well as the qualifications to perform that job, are only some of the elements of an H-1B petition. You must also closely follow USCIS’ H-1B deadlines and ensure your employer files and receives a timely certified application from the Department of Labor with the correct information. Check with your employer and a knowledgeable immigration attorney early in the process so that you are prepared. Although the current immigration climate is challenging, one of the keys to a successful H-1B petition is proper planning and preparation.

Related Reading

Employment Options for Students on an F-1 Visa

Understanding Visas to Study and Work in the U.S.

Lucy Cheung is a Partner at Goldstein and Cheung LLP, a firm that practices exclusively immigration law, in New York City.