co-authored by Adam J. Kneeland
The H-1B, H-1B1, and E-3 visa classifications require the foreign national to be entering the US for employment in a specialty occupation.
8 CFR 214.2 (h)(4)(ii) defines specialty occupation as:
an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of 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.
The definition is further broken down into four separate requirements that a specialty occupation must meet:
- A bachelor's degree or higher, or its equivalent, is normally required for the position
- The required degree is a minimum qualification for entry into that position across the industry in the United States OR the position is so complex that it can be performed only by an individual with a degree
- A degree, or its equivalent, is normally required by the employer for the position
- The nature of the position's duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor's degree or higher
8 CFR 214.2(h)(4)(iii)
It is important to note that USCIS interprets degree to be US bachelor's degree, or a foreign degree equivalent to a US bachelor's degree. If the beneficiary has obtained a degree from outside of the US, then a degree evaluation will be required to show that this degree is equivalent to a U.S. bachelor's degree. (Often called “education equivalency evaluations,” these reviews of non-U.S. credentials are relatively easy to obtain as long as the beneficiary is able to provide copies of their degree certificate/diploma and full transcript.)
If the beneficiary has demonstrated experience that makes them a good candidate for a position but they hold a degree in a field that is not directly related to the position (e.g., an experienced software developer who has a bachelor's in electrical engineering), USCIS will accept an evaluation of education and experience that proves the candidate's work experience is equivalent to a college degree. These types of evaluations have higher standards and stricter requirements if they are to be successful, however, and are usually more expensive.
Additionally, USCIS further interprets the degree requirement as a bachelor's degree in a specific field or specialty that is directly related to position. For example, a job posting that set the position requirements as “a bachelor's degree in business, marketing, or an IT-related field” would NOT meet USCIS's requirements; although a bachelor's degree is required, the list of acceptable degrees is too broad to meet the criteria that the degree be in “a specific specialty.” However, the requirement is not that a job require only ONE type of degree. A position that requires “a bachelor's degree in Computer Science, Information Technology, or a closely related field” would be unlikely to have any trouble because computer science and information technology are usually considered to be overlapping degrees in the same specific specialty even if the precise focus of the degrees might differ.
Below are some example scenarios inspired by actual cases.
A university wants to a hire a video editor to prepare educational content for use in classrooms and, as a secondary duty, assisting or reviewing the work of student video editors in relevant projects. However, video editing positions, per the sources USCIS uses, have fairly broad requirements—that is, communications, fine arts, and film degrees can all lead to a job in video editing, something that seems to disqualify this position from being considered a specialty occupation. However, this specific position involves preparing educational content and overseeing student work which arguably makes this specific job more complex and specialized. Plus the university wants an employee that specifically has a degree in Film and Media Arts; a general degree in film or communications would not, the university argues, have the specific focus on preparing video content. In this case, then, the university can successfully argue that the position being offered to the beneficiary is uniquely complex and thus requires a degree in a specific specialty.
Company A is looking to hire a software developer. The position usually requires a relevant degree in computer science or something similar. Company A's preferred a candidate has a very strong resume with many years of directly relevant experience. However, this candidate only holds a bachelor's degree in electrical engineering. Almost none of her coursework is relevant to the position and USCIS does not consider certifications, only university degrees. So, even though she clearly has the skills they require, her educational background does not meet the criteria. However, the candidate is able to get detailed letters of experience from her previous employers and, using these letters, Company A is able to obtain an evaluation of her education and experience together. With so much relevant work history in software development she is able to show that she holds the equivalent of a U.S. Bachelor of Science in Computer Science, which meets the requirements for a specialty occupation.
Company B seeks to hire someone to manage a team of employees who provide tech support to customers using Company B's products/services. While the candidate for this role won't provide much direct software support, they will be overseeing a team of people who will. Company B extends an offer to a candidate with a degree in Information Technology from a U.S. university, confident that he will be able to understand the services his team offers and competently manage their activities
Company B files for a petition seeking an H-1B, categorizing the position as an Information and Technology Project Manager role on the required LCA. However, USCIS issues a Request for Evidence asking for proof that this specific role requires a degree in a specific field; USCIS says that because this candidate won't be doing much hands-on programming support, they aren't convinced this position qualifies as a specialty occupation. Couldn't someone with an MBA manage a team of IT professionals?
In this case, Company B must prove that the candidate's degree is directly relevant to his duties, thus showing that this position requires that specific degree. Company B first provides CVs for all the members of the team that the candidate will supervise; if the candidate is going to successfully manage and oversee the work of software professionals, Company B argues, he must have a firm grasp on the technical aspects of his team's work and therefore must hold a degree in an IT-related specialty. Company B also provides a chart that matches each job duty of the position with a course from the candidate's bachelor's degree that will be of use in performing that duty. This shows, Company B argues, that the candidate's degree is directly relevant to his work; how else would he have the required knowledge to perform his duties? The position MUST be filled by someone with specific knowledge, and thus a degree in a specific specialty is a requirement for this role. USCIS agrees, and the petition is approved.