Do you qualify for an H-1B Visa?

Many of you may have heard of a visa known as the H-1B. What exactly is an H-1B visa, and who is eligible for apply for it? The H-1B is available to individuals who will be employed in a “specialty occupation”; as a fashion model of “distinguished merit and ability;” or in a service related to the Department of Defense. Not surprisingly, H-1B visas are most often issued to those who intend to be employed in the first category. Yet, despite the fact that approximately 65,000 new H-1B visas are issued each year, misconceptions nonetheless exist regarding what constitutes a specialty occupation.

“Specialty occupation” is defined as a position that requires the following:

1. Theoretical and practical application of a body of highly specialized knowledge
   
2. Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.

Many individuals are under the mistaken belief that if they hold a bachelor’s degree, then they automatically qualify for an H-1B visa. This is not so. Not only must an applicant possess at least a bachelor’s degree, but the degree must be in a specific area of specialty that is related to position offered. If the applicant received a bachelor’s degree from abroad, that degree must be evaluated. It should also be noted that individuals holding less than a bachelor’s degree may still qualify for an H-1B visa, if their professional experience, or combination of academic credentials and professional experience, can be evaluated to be equivalent to a bachelor’s degree.

Secondly, the U.S. Citizenship and Immigration Services will also examine whether the position offered is itself a specialty occupation. To determine whether a position is a specialty occupation, it must meet one of the following criteria:

1. A bachelor or higher degree (or equivalent) is normally the minimum requirement for entry into the particular profession.
   
2. The requirement of a bachelor’s degree is common in the industry in parallel positions among similar organizations (or, alternatively, the particular position is so complex or unique that a degree is required).
   
3. The employer normally requires a degree or the equivalent thereof;
   
4. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree.

Therefore, not only must the applicant hold at least a bachelor’s degree in an area related to the position sought, but the position itself must be considered a specialty occupation. Suppose, for example, Golden Patties wanted to sponsor Beverly P. as a manager for one of their restaurants. Beverly P. holds a bachelor’s degree in hotel and restaurant management. Would an H-1B petition filed by Golden Patties on her behalf be approved? Not necessarily. Why, you might ask? Although Beverly P. holds a bachelor’s degree that is directly related to the position of Restaurant Manager, the Immigration Service has determined that a restaurant manager does not qualify as a specialty occupation. Although a respectable number of colleges and universities offer four-year programs leading to a bachelor’s degree in hotel and restaurant management, the Immigration Service does not take the view that a four-year degree in this area is the minimum requirement for entry into the field of restaurant management.

Is there any way that Golden Patties’ H-1B petition on behalf of Beverly P. be approved? Maybe – if the restaurant can demonstrate that the requirement of a bachelor’s degree is common in its industry for the position of restaurant manager among similar organizations (this means other restaurants of comparable size, location, etc.), the H-1B may be granted. Likewise, if Golden Patties can show that the position of Restaurant Manager, in the context of its business, is so complex that a degree is required, the H-1B petition may be approved.

As another example, suppose Company XYZ wishes to sponsor Michael A. as a financial analyst. Michael A. possesses a bachelor’s degree in education. Will Company XYZ’s H-1B petition for Michael A. be approved? Again, the answer is not clear-cut. The Immigration Service will probably question whether Michael A qualifies for an H-1B visa. Why? Because the degree (education) is not in the specific specialty (finance), i.e. a bachelor’s degree in education is not the usual minimum requirement for entry into the profession. However, if Michael A can show he had previous related experience in the field, and can have his education and work experience evaluated to be the equivalent to a bachelor’s degree in finance or business administration, then an H-1B petition under these circumstances should be approved.