H-1B Specialty Occupations
It is sometimes difficult to determine if an occupation is a specialty occupation that would qualify for an H-1B visa. It may be clearer for jobs in architecture, engineering, medical or health sciences, accounting, because obviously, to be an architect, you need to have a bachelor’s degree in architecture; to be an engineer, you must have a degree in engineering.
It is less clear, though, for jobs such as those in marketing like Market Research Analyst or Market Specialist. Oftentimes, USCIS typically classifies them as administrative positions and not “specialty occupations”.
However, in one case, the USCIS was found to have abused its discretion when it denied an H-1B petition. This case clarified that H-1B specialty occupations are not limited to those with specifically tailored and titled degrees.
A company based in Yakima, Washington that operates gas stations, convenience stores, and hotels filed a petition for a non-immigrant worker under the H-1B classification. They wanted to hire a Fiji national to become their marketing Analyst and Specialist to assist in assessing market and geographical opportunities for expanding its hotel and convenience store business in the region and all over the US. The Fiji national had a bachelor of science degree and a certificate in business management and marketing.
USCIS denied the H-1B petition despite the company’s submission of documents to support its petition because according to USCIS, it failed to show that the position qualified as a specialty occupation within the meaning of the regulations.
The Immigration and Nationality Act (INA) defines “specialty occupation” as an occupation that requires (1) theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of bachelor’s or higher degree in specific specialty (or its equivalent) as a minimum for entry into the occupation in the US.
USCIS further developed a set of four criteria to determine whether an occupation qualifies as a ”specialty occupation”, one of which must be satisfied: (1) a bachelor’s degree normally is the entry-level requirement for the job; (2) the degree is common in the industry among comparable or similar employers; (3) the employer normally requires a degree for the job, or (4) the job duties “are so specialized and complex” that you typically need to have a bachelor’s degree to perform them.
After it is established that a position is indeed a “specialized occupation”, the H-1B visa petitioner must provide proof that the beneficiary has one of the qualifying: (1) a US bachelor degree required by the specialty occupation from an accredited college or university; (2) an equivalent foreign degree; (3) an equivalent state license; or (4) an equivalent combination of education, specialized training, and work experience.
The USCIS contended that the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry in to the occupation.
In the reversal of the earlier USCIS decision, it was clarified by the court that a market research analyst is “a distinct occupation with a specialized course of study that includes multiple specialized fields”. It is wrong to narrow down the plain language of the law to include only those occupations with specially tailored degree programs. Otherwise, it will ignore the language of the law that requires the attainment of the “equivalent” of specialized bachelor’s degree as a requirement for entry. In the reversal, the court clarified that “it is clear that Congress and the INA recognized that the needs of a specialty occupation can be met even where a specifically tailored baccalaureate program is not typically available for a given field.”