What Occupations Are Covered Under H-1B Petition For Foreign Employee?
Prior to preparing the H-1B petition for a foreign employee, US employers shall determine whether the specific occupation falls under the H-1B category or not. Currently, the H-1B category covers only foreign employees who come to US to perform services in a specialty occupation or are models of distinguished merit and ability.
A specialty occupation is an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty as a minimum for entry into the occupation.
To qualify as a specialty occupation, the position must meet one of the following criteria:
(1) A baccalaureate 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 degree;
(3) The employer normally requires a degree or its equivalent for the position; or
(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. INA § 214.2(h)(4)(iii)(A).
Some occupations clearly fall under the specialty occupation for H-1B purposes, and employers do not have to do much to show that the offered position is in a specialty occupation. The list of these occupations includes, but is not limited to, lawyers, accountants, engineers, architects, psychologists, scientists, and financial analysts. For these occupations, employers do not need to submit extensive evidence to show that the position is in a specialty occupation.
For other occupations, which do not clearly fall under the specialty occupation category, employers will have to demonstrate that the position is in a specialty occupation. Employers can demonstrate that the position is in a specialty occupation by showing that it meets one of the criteria specified in the Immigration and Nationality Act. The adjudicators at USCIS rely on the Department of Labor’s Occupational Outlook Handbook to determine whether the position is in a specialty occupation or not. This handbook specifies the duties and requirements for different positions, including the requirements for entry into the specific occupation. The Handbook can serve as a comprehensive guide for employers to determine whether the specific position will qualify as a specialty occupation or not.
Employers shall keep in mind that the H-1B category does not cover all the occupations, but only specialty occupations. Hence, employers shall determine whether the specific position is in a specialty occupation, and only after that shall start working on the H-1B petition. If the position is not in a specialty occupation the H-1B petition will not be successful, and employers should think about alternatives.
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