The H-1B Classification
By Liu Yu
1. Background and History
The Immigration Act of 1952 established a new nonimmigrant class of temporary workers. In these provisions, Congress sought to grant the Attorney General sufficient authority to admit temporarily certain alien workers, industrial, agricultural, or otherwise, for the purpose of alleviating labor shortages as they exist or may develop in certain areas or certain branches of American productive enterprises, particularly in periods of intensified production. Prior to 1989, there were three H nonimmigrant worker classifications. The H-1 category included all persons of distinguished merit and ability which was generously interpreted to include all persons engaged in occupations which required a bachelor’s degree or equivalent.
The current statute defines H-1B status as being available to a foreign national who will temporarily perform services in a specialty occupation, as long as the intending employer has filed with the DOL a labor condition application, as discussed below. This definition replaced the previous standard of distinguished merit or ability, in 1990, through the enactment of the Immigration Act of 1990 (IMMACT90).
2. Overview
The H-1B classification allows foreign nationals to accept professional assignments with U.S. employers, after the employer has obtained an approved labor condition application (LCA) from the Department of Labor (DOL). “H-1B dependent” employers have additional obligations.
There is an annual numerical limitation of 65,000 for H-1B status, with an additional 20,000 H-1B visas for foreign nationals holding U.S. advanced degrees. A foreign national is not subject to the H-1B cap, however, if he or she is or will be employed at an institution of higher education, a nonprofit entity related to or affiliated with an institution of higher education, a nonprofit research organization, or a governmental research organization.
A single H-1B petition may be valid for up to three years. H-1B petitions may be extended for an additional period of up to three years, to a maximum of six years in H-1B status, with limited exceptions. Dependent spouses and children of H-1B nonimmigrants hold H-4 status. (H-4 dependents do not require H-1B visa numbers.) A foreign national may simultaneously pursue permanent residence while holding H-1B status. He or she may also change H-1B employers.
3. Specialty Occupation
The statute defines the H-1B visa classification as available for a foreign national who will “perform services … in a specialty occupation.”
INA §§214(i)(1) and (3) defines the term “specialty occupation” as an occupation that requires the following:
● The “theoretical and practical application of a body of highly specialized knowledge”
● The “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”
The appropriate “fields of human endeavor” for specialty occupations may include, but are “not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.”
8 CFR §214.2(h)(4)(iii)(A) provide further guidance on the requirements of a specialty occupation, where the position must meet one of the following criteria:
◆ “A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
Consideration of a claim to such eligibility [for H-1B status] first focuses on the tasks, demands, duties, and actual requirements of the position in question…. A petitioner must establish that the position realistically requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning.
Also, it is not sufficient to simply establish that a bachelor’s degree or higher degree is a minimum for entry into the occupation, the position must require a degree in a specific specialty.
◆ “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;
The petitioner should submit evidence that a degree in the specialty is commonly required by other employers in the same industry.
When reviewing an employer’s historical degree requirement, “the critical element is not the title of the position or the employer’s self-imposed standards, but whether the position actually requires the theoretical and practical application of a body of highly specialized knowledge” and a degree.
◆ “The employer normally requires a degree or its equivalent for the position;
For a job to be considered within the professions, it is not enough that a petitioner desires to employ a person with a degree. The degree requirement must be an industry standard in parallel positions among similar firms and institutions. In addition, it must be shown the employer normally imposes this requirement.
◆ Or “The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.”
Depending on the nature of the petitioner’s business and operations, the duties of the proffered position could be more complex than those described for the same position in the Handbook. Thus, the petitioner’s requirement of a bachelor’s degree may be a reasonable requirement if the petitioner can establish that the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
USCIS may also differentiate between positions that are entry level and those at more advanced levels.
The Administrative Appeals Office (AAO) has maintained that the criteria stated above should be read as being necessary but not necessarily sufficient to meet the statutory and regulatory definition of specialty occupation. Thus, one must ensure that documentation and arguments are submitted supporting both the definition and at least one of the criteria.
To determine whether a particular job qualifies as a specialty occupation, [USCIS] does not simply rely on a position’s title. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors to be considered.
One should also note that obtaining an approved LCA in an occupational classification does not constitute a determination by that agency that the occupation in question is a specialty occupation.
Adjudicators will look at each case individually instead of classifying based only on the job title.
The petitioner’s size is a relevant inquiry because the “complexity of the duties in relation to the petitioner’s business must be analyzed.
The H-1B petition must include documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the services the beneficiary is to perform are in a specialty occupation.” This evidence may include copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.
（To be continued）
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