ILW.COM - the immigration portal: H-1B Series: More On Making Your Case For An H-1B "Specialty Occupation"

Straightforward Specialty Occupations: The "Easy" Cases

As a reading of the legal definition quoted in the previous article suggests, there are several fields which the H-1B regulations expressly recognize as involving "theoretical and practical application of a body of highly specialized knowledge," so that jobs in these fields are essentially recognized as per se specialty occupations. These include:

architecture
engineering
mathematics
physical sciences
social sciences
medicine and health
education
business specialties
accounting
law
theology
the arts

Some of these fields use specific job titles such as architect, engineer, doctor, teacher, accountant, or lawyer. Others are more general areas such as "business specialties" and "the arts," calling on the petitioner to identify an appropriate job subtitle that is included within the field. The "engineer" title subdivides into separate engineering disciplines such as electrical engineering, mechanical engineering, and software engineering.

For petitions in these recognized fields, the employer should include its job description and statement of requirements as described above, and the balance of the petition will generally be straightforward and approvable, provided that the information provided is not unusual nor inconsistent with the Labor Condition Application and the beneficiary's qualifications.

It is always to the employer's advantage, where possible, to use the most straightforward, generally recognized, appropriate professional title for a job. Some employers tend to use more individualized, uncommon-sounding titles tied to a particular in-house function or a preferred scheme of internal organization. An unusual title that does not immediately specifically identify a job may cause confusion or delay because the INS examiner will have to probe deeper in the supporting evidence to see if the job is really a specialty occupation.

For example, a software development company might use the title "technical account manager" for a position that requires a qualified software engineer to be on call to work with a specific group of clients whenever they need professional software engineering services related to the company's product. In another example, a growing Internet company might assign the title "business development specialist" to a person charged with undertaking the computer programming necessary to develop a new function for the company's e-commerce web site and put it on line. In both cases the H-1B petition should be approvable as involving computer-related specialty occupations once the examiner reviews the actual job description. However, the respective titles do not clarify the job function, and actually suggest sales management or other business duties rather than computer occupations. In this example, using a straightforward "software engineer" title would avoid any question and help expedite processing of the case. Or the employer might use its internal title followed by the broader occupational category in parentheses, such as "technical account manager (software engineer)."

This technique is particularly helpful for small companies, startups, or growing businesses in a new sector area of the economy, which tend to operate informally and have many people performing multiple functions with less-defined jobs and hierarchy. As these businesses grow and mature, development of more formalized job descriptions with regular professional titles is a good strategy that will position them more easily to sponsor H-1B workers.

Establishing the "Specialty Occupation" in Complex Cases

In other job situations the "specialty occupation" standard might not be so clear. These cases require more thorough analysis of the job circumstances, and careful attention to gathering additional evidence and preparing good arguments. There are a number of resources that the employer can turn to, including the Department of Labor references described in the previous article, evidence of normal industry practices, particular details about the specialized duties of the position offered, and the employer's own usual hiring practices for the position.

One aspect of the "specialty occupation" argument that requires more attention occurs when an employer's job category arises in a new sector of the economy, and does not fit into any pre-existing standard definition. The DOT and OOH publications are good starting points to find evidence that a position is professional, but the information they contain is frequently out of date. The current fast-paced information age fosters rapid change in the American workplace, in which completely new types of jobs are being created. Even for traditional jobs the minimum requirements needed to perform job duties are becoming more complex. These changes occur faster than they can be documented in traditional reference sources.

Other situations which may require more careful attention include the following:

Where the pay appears to be quite low, even though the beneficiary has strong academic credentials and/or experience. This is frequently a problem for small, nonprofit organizations. For example, an organization providing health and welfare services to the homeless in the inner city requires that its program managers have advanced degrees in social work or public health so that the managers actually perform at a very high professional level but may earn an average of only $30,000 to $40,000. The persons holding these positions are not in their professions for money, but for the satisfaction of helping the organization meet its mission. To an INS examiner who does not understand this, the initial reaction is that the position must be nonprofessional.

Where the closest job description fit in the DOT or OOH publications is actually a nonprofessional position, but the employer feels that its circumstances are unique and involve a much higher level of specialized knowledge than that recognized in the reference sources, thereby justifying a B.S. requirement. For example, one of the country's top veterinary hospitals requires a B.S. in biology or animal sciences for a veterinary assistant position. The DOT, however, lists veterinary assistant as a nonprofessional position not normally requiring a B.S.

Where the job requirement is only for a general liberal arts degree, or the foreign national's actual academic background involves such a degree. Unless the job is specific to the degree, such as with an English teacher, historian, or sociologist, it becomes hard to justify a job as a "specialty occupation" that accepts any general liberal arts background. An economics background is somewhat easier to fit into a business/market research position, but still requires a carefully drafted job description.

In reality, any position that does not fit into the per se list above should be scrutinized carefully under the criteria described in this subsection.

The key to classifying a position as a specialty occupation in these complex situations will be performing a more expansive strategic evaluation of the position in connection with preparing the job description, using the supplemental criteria suggested by the regulations quoted above. By examining the specific industry to which the position belongs, the current hiring standards of that industry, the complexity of the duties to be performed, the employer's consistent hiring standards, and the bona fide business reasons behind those standards, it can often be clarified why a baccalaureate degree or its equivalent is a necessary requirement for the subject position.

It is to the employer's advantage to perform a strategic analysis before preparing the H-lB petition. Once the employer gathers the evidence, it can then be satisfied that its job meets the INS standard, and make an informed judgment about how much evidence to actually submit to the INS. Without this preparation, the employer may be required to gather evidence in response to an INS "Request for Evidence" ("RFE") sent after initial review of the petition. The Request for Evidence typically states that the petitioner's initial submission did not establish the position to be a specialty occupation, and asks a series of detailed questions based on the regulatory criteria. By the use of careful issue-spotting and planning, the petitioner can prepare an initial submission that will be approved upon submission without amendments, and avoid the extra delay and expense of responding to a Request for Evidence.

Additional Criteria

The Code of Federal Regulations sections quoted previously suggest a set of particular criteria around which the petitioner can focus its supporting evidence. Some of the criteria appear objective, calling on the petitioner to justify its degree requirement through reference to common industry practice or evaluation of the position from independent sources. Others are more subjective, focusing on particular characteristics of the employer and its practices. Restated, the criteria are:

"A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position";

"The degree requirement is common to the industry in parallel positions among similar organizations";

"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"

"The employer normally requires a degree or its equivalent for the position"; and

The employer's "particular position is so complex or unique that it can be performed only by an individual with a degree."

The first of these criteria applies to professions where it is commonly accepted that a bachelor's degree appropriate to the profession is the normal minimum requirement, and where the petitioner can otherwise establish that a bachelor's degree or higher is generally accepted to be the minimum requirement.

As described above, the best place to begin accurately to depict this description is in the job title itself. Beyond that, the job duties and subject area of the required degree as described in the supporting evidence must be consistent with the normal duties and requirements associated with the profession.

The second criterion becomes important where a position does not necessarily fit into a standard occupational category in the common reference sources, where it does fit into such a category but standards in the industry have changed, or where the INS may not be satisfied with reference to those sources and asks for more particularized information. In this criterion the focus is on actually gathering evidence from "similar organizations" - i.e., other employers in the same business - about their degree requirements for positions "parallel" to the one at issue, to show that the degree requirement is "common to the industry" for the job.

It might be sensitive or difficult to approach competing businesses for this type of information. If a relevant trade association exists, that is the best place to start. Companies in the same line of business should recognize that it is in their long-term interest to create a record whereby the INS has accepted a common position as a "specialty occupation," even for a competitor. If an employer does not wish to approach other businesses for help, it might be able to find publicly available sources of information that will support the point.

Specific types of evidence that can demonstrate the common industry standard include the following:

Letters from human resources or other responsible officers in companies in the same business as the petitioner stating that they in fact employ personnel in the same position, and require a relevant bachelor's degree for the job. The letters should include recent hiring data, if available.

A statement from a professional or trade association in the petitioner's business that a bachelor's degree or higher is, or has become, the common and normal minimum requirement for the particular position in the industry.

Copies of print advertisements, Internet job listings, or other recruitment information from other companies showing a bachelor's requirement for the same position.

Articles in professional journals specific to the industry which state that a bachelor's degree or higher is, or has become, the minimum requirement for the position.

A statement from an expert in the field which indicates that, within businesses such as the petitioner's, a position of the type offered ordinarily requires a bachelor's degree.

The third and fifth points are essentially the same. They focus on characteristics of the position itself, and involve arguing that regardless of the other criteria, the position described in the petition is unique and so specialized and complex that by its very nature it requires attainment of a bachelor's degree or higher in the specialty. As a strategic matter, it is easier for the employer to make objective arguments based on the regular reference sources or "common industry practice" points described above. However, certain circumstances might indeed involve such specialized and complex duties that the average requirements of the occupation from other sources do not provide suitable comparison. In these circumstances the job description provided in the supporting evidence assumes greater importance.

To successfully use the "complex and unique duties" strategy, the employer must provide a job description that is extremely detailed, covering every conceivable relevant point about the employer, its products or services, the precise day-to-day duties of the position, and what makes them complex and unique. As suggested above, the duties should emphasize:

specialized knowledge and/or skills,

independent responsibility,

discretionary decision-making authority,

working with other professionals, supervision of other professionals,

long-term goals and expectations,

high-level reporting/accountability structure, and

any other information the employer feels is helpful.

Other helpful petition drafting points, which have been briefly described above, are:

Use action verbs that convey the higher level of complexity, responsibility, and exercise of judgment necessary to perform the job duties. The following examples are recognized in the DOT: "synthesizing," "coordinating," "analyzing," "mentoring," "negotiating," "instructing," "supervising," "setting up," "precision working," and "controlling."
Incorporate detailed descriptions of the particular specialized skills, knowledge, and use of equipment that are required to perform the duties, with an explanation of why such abilities cannot generally be acquired without a bachelor's degree.
Explain the uniquely specialized, complex, or high-quality nature of the products or services the employer provides compared to any general industry standard, to differentiate the position from those with less sophisticated employers. As an example, in the veterinary assistant case described above, the employer could rely on this strategy to argue that:
1. the veterinary assistant job description in the DOT, identified as nonprofessional, reflects a position at a rural agricultural clinic, in routine farm-animal care, whereas this employer is one of the top veterinary hospitals in the country in a major East Coast city, providing the highest level of care for animal patients;
2. because of this unique situation, this hospital deals only with the most challenging and specialized animal care problems;
3. its veterinary assistant positions involve unique and complex duties to assist veterinarians in a wide variety of challenging care problems, and in fact its assistants function like physician assistants in human hospitals, a job that is regularly recognized as professional; and
4. for these reasons the employer has always required a bachelor's degree in biology or animal science.

The employer may also obtain an independent expert "Position Evaluation" report about the job to support its argument. The expert should be a recognized authority in the particular field, or be qualified as an expert in human resources or occupational analysis. He or she will review all the particular duties of the position, and offer the opinion that they involve such a level of specialized knowledge, complex decision making, and independent responsibility that a bachelor's degree in the appropriate field would normally be a prerequisite. For example, in the nonprofit homeless service organization case, a professor at a graduate school of public health who is familiar with the organization and its work could provide a letter certifying that the position of program manager is indeed a professional position involving a substantial amount of specialized knowledge and independent responsibility despite the low, nonprofit pay scale.

Finally, regarding the fourth point, the employer would demonstrate that regardless of the other criteria, it has always required a bachelor's degree or equivalent for the position. For large employers, this can be presented in the form of statistics about past hiring practices in the position and the educational qualification of current employees. For smaller employers, a simple list of current or past employees in equivalent positions and their educational backgrounds will suffice. Other documents submitted to support this criterion of evidence could include:

Job requisition/description pages in the company's employee handbooks specifying different positions available and the minimum requirements.

Copies of print advertisements, Internet postings, and other recruitment material of the employer showing a consistent pattern that the employer has stated a bachelor's degree requirement for the position.

This last point essentially functions as back-up for the other arguments. The employer's stated degree requirement alone, even if supported by past practice, will not automatically establish that a job is a specialty occupation; it must still show that the duties of the position require theoretical and practical application of a body of specialized knowledge. For example, a high-end retail store in a resort town area might require a bachelor's degree for a store manager position, and might be able to show that it has prior thereto only hired persons with bachelor's degrees. The store could defend its hiring policy by adding that in the past, college-educated employees have been more trustworthy and reliable than less-educated employees, and that it has no trouble recruiting people with college degrees because the town attracts an educated population seeking a relaxed, enjoyable lifestyle. Such an argument would not qualify the position as a "specialty occupation" because it would not have been shown to involve the type of specialized knowledge and complex duties normally associated with a professional position that requires a bachelor's degree in an appropriate specialized field.

Similarly, if the employer requires simply a bachelor's degree with no regard for a particular area of concentrated study, the job may not satisfy the specialty occupation standard. The employer may truthfully say that it has always required a bachelor's degree, but admit upon review that it has accepted degrees in a wide variety of subject matters. Unless the employer can demonstrate how each of the major fields of study it has accepted are specifically relevant to the specialized duties in the position, then this evidence of prior hiring practice will not be helpful and might in fact hurt the petitioner's case.

About The Author

George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.

This article is the seventh in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.

For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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