specialty occupation according to USCIS statutes. Here is where it gets murky:There are two very similar but profoundly different definitions of specialty occupation within the same CIS statute.INA § 214(i)(1) defines it as, “An occupation that requires theoretical and practical application of highly specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”INA § 214.2(h)(4)(ii) holds the same definition EXCEPT instead of stating the degree must be in THE specific specialty, it states itmust be in A specific specialty.Employers will hire H-1B employees for positions when they have a degree that exactly matches the job, or that is related to the job in such a way that there is significant specialized knowledge and skill overlap. This still tends to be a narrow range of degree specializations. In the past, CIS has approved visas according the second definition that allowed for beneficiaries with degrees in related fields that did not exactly match the H-1B job because the job requiring that minimum credential would qualify for H-1B eligibility under that definition. In recent years, CIS has switched to the first, strict definition that requires beneficiaries have “a bachelr’s degree or higher in THE specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”However, if you, or your employee or client receieves an RFE for specialty occupation, disputing these definitions will not help you. The important part to focus on in BOTH of these definitions is: “or its equivalent.”In the Tapis International v. INS decision, it was established that equivalent encompasses academic and experienced-based training in various combinations. This means that a job or a candidate doesn’t necessarily need a bachelor’s degree in THE specific speciality to be eligible for H-1B. There are four options, one of which must be met:
- The job in question normally requires a minimum of a US bachelors degree or higher for entry into the position in the United States.
- This minimum degree requirement is normal for this job in similar organizations in the industry.
- The job in question is uniquely complex to need a US bachelors degree or higher as a minimum requirement for entry into this position.
- The employer sponsoring the H-1B beneficiary commonly requires a this degree as a minimum for entry into the position, and this can be proven by their hiring history.