What is a “Specialty Occupation”?

The Immigration and Nationality Act (INA) defines a “specialty occupation” as:

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

Essentially, to be considered a “specialty occupation,” the occupation must require a bachelor’s degree in a specific field. Although the USCIS’ regulations provide further elaboration on this definition, for many occupations, it is still unsettled whether a bachelor’s degree is in fact the normal academic prerequisite. Petitions for marketing analysts, underwriters, general managers, and executives, to name a few, are sometimes singled out by the USCIS and denied on the basis that the occupation does not require a bachelor’s degree. The preparation of such cases requires great care in documenting how the duties of the position relate to a specific bachelor’s level course of study. Supporting materials should also be submitted to show that similar positions at the company and in the industry also require a bachelor’s degree as a minimum educational prerequisite. Some examples of occupations which clearly do meet the standard for specialty occupation include: accountants, architects, engineers, financial analysts, pharmacists, lawyers, physicians, and teachers.

As one would expect, an H-1B petition for a worker in a specialty occupation must also show that the beneficiary actually possesses a bachelor’s degree, or its equivalent, in that specialty. Where the beneficiary attained his or her degree abroad, a foreign credentials evaluation must be submitted with the degree to show that the foreign degree is equivalent to a U.S. degree in the same field. Where the beneficiary does not have a bachelor’s degree in the field, but has an education that would be equivalent to one, an evaluation from a foreign credentials evaluator may also be submitted to the USCIS to show that the person meets this requirement.

Where the beneficiary does not have a bachelor’s degree, but has substantial related work experience, the petitioner may demonstrate that the beneficiary has the equivalent to a bachelor’s degree by showing that the individual has achieved “a level of knowledge, competence, and practice … that has been determined to be equal to that of an individual who has a bachelor’s or higher in the field.” This may be shown through one or more of the following:

1. A determination under the so-called “3-for-1” rule demonstrating that the person has 3 years of work experience for each year of missing college education;

2. An evaluation from a professor with authority to grant academic credit for work experience; and/or

3. Results from a college equivalency examination.

“3-for-1” determinations are made by the USCIS based on evidence submitted by the petitioner. The evidence, which usually includes evaluations from at least two authorities in the field, employment verification letters, and other documentation regarding the individual’s achievements, must demonstrate that the beneficiary has attained three years of work experience for each missing year of education. For example, a beneficiary who has a two-year associate’s degree and six years of work experience would meet the 3-for-1 rule, and may be considered to have the equivalent of a bachelor’s degree; the two years of additional education that would be required to reach the bachelor’s level is made up for by the person’s six years of work experience. It should be noted, however, that the USCIS has a great deal of discretion in this area and may not make a favorable determination, even where the 3-for-1 rule is clearly met.

Employers may also submit an equivalency evaluation from a professor or professors who have the authority to grant college-level credit for training and/or experience in the field at an accredited university which has a program for granting such credit. This option may prove to be more flexible than the 3-for-1 rule. Thus, a person with no degree and limited experience, but a great deal of expertise in the field may qualify for H-1B sponsorship.

Evidence to show that the beneficiary who has passed a college-level equivalency examination or special credit program, such as the College Level Examination Program (CLEP) or Program on Noncollegiate Sponsored Instruction (PONSI) may also be submitted to help establish his or her bachelor’s level equivalency. However, because these exams only relate to specific college courses rather than an entire degree program, they should always be submitted in conjunction with 3-for-1 documentation or professorial evaluation.

H-1B Filing Procedures

The first step in obtaining H-1B status on behalf of a prospective employee is to file a Labor Condition Application (LCA) with the Department of Labor (see discussion on Prevailing Wage and LCA requirements below). Once the LCA is approved, which normally occurs within a few weeks when submitted online, the H-1B petition may be filed with the USCIS. Petitions filed with the USCIS usually take from two to six months to be approved. If premium processing is requested for an additional $2,500 filing fee, the petition will normally be adjudicated within 15 days. Note, however, that H-1B1s pursuant to free trade agreements with Chile and Singapore may be filed directly with a U.S. embassy or consulate abroad (see below).

Once the petition is approved, the beneficiary may apply for an H-1B visa at a U.S. consulate or embassy abroad, with some exceptions. If the person is in the United States in H-1B status for another employer, he or she can usually begin working as of the filing of the new petition pursuant to “H-1B Portability.” If the person is in the United States in a different status, he or she usually can begin working at the H-1B sponsor as of the approval effective date once the petition for a change of status is approved. For example, a “change of status” petition is filed for an individual in F-1 student status on April 1, 2015, and is approved on August 15, 2015, but the effective date is not until October 1, 2015. The person cannot begin working at the sponsor until October 1, 2015. If the person were already in H-1B status at the time of filing, however, he or she could usually begin working at the new sponsor on April 1, 2015, the date the H-1B was filed.

Time Limits for H-1Bs

H-1B status may be granted initially for a period of up to three years, and extensions may be granted in up to three-year increments for a total period of six years. However, if the H-1B worker is a beneficiary of a labor certification or an employment-based I-140 immigrant petition that has been on file for at least 365 days, the H-1B status may be extended beyond the six-year limit in one-year increments until the person obtains a green card. If the person if the beneficiary of an approved I-140 petition and is affected by immigrant visa quota backlogs, extensions may be granted beyond the six-year time limit in three-year increments. If the person's H-1B period of stay is exhausted, he or she may not remain lawfully in the United States as an H-1B until he or she has been outside the United States for a continuous period of at least 365 days. For purposes of calculating the maximum period in H-1B status, any time spent in the United States in H-4 or L-2 dependent status is also excluded.

Green Card Sponsorship and the “Doctrine of Dual Intent”

Unlike most other nonimmigrant classifications, the Immigration and Nationality Act (INA) and USCIS regulations impose few restrictions on foreign nationals who are seeking permanent residency while in H-1B status. Traditionally, to be admitted into the United States, all nonimmigrants were required to prove a residence abroad that they had no intention of abandoning. This requirement meant convincing the consular officer and/or immigration officer that they were not intending to pursue a permanent residency (“green card” status) once admitted as a nonimmigrant. Although this is still the case for most classifications, the legacy INS and later Congress began to recognize a distinction for temporary workers in H-1B and L-1 statuses, and, to a lesser extent, workers in E-1, E-2 and O-1 statuses. This exception, which is referred to as the “the Doctrine of Dual Intent,” allows H-1Bs and L-1s to seek and apply for permanent residence status without jeopardizing their H-1B or L-1 temporary status. Although USCIS policy memoranda has stated that E-1, E-2 and O-1 status holders may also seek permanent residency, the ability to file a green card (adjustment of status) application without jeopardizing one’s E or O status has yet to be established in the regulations.