Meeting the “Specialty Occupation” Test

The U.S. Citizenship and Immigration Service (the “USCIS”) requires an employer seeking a temporary foreign worker under the H-1B program to demonstrate that the worker meets the tests of a qualified “specialty occupation.”

USCIS regulations and decisions of the Administrative Appeals Office (the “AAO”) provide some guidance concerning the test for meeting the definition of a “specialty occupation.” In general, an employer must be able to demonstrate one or more of the following:

1. A Bachelor’s degree or higher degree of education is the typical minimum requirement for the particular position in question. Under this test, small tech companies must be careful to demonstrate that they are seeking to hire an engineer and not a tech support specialist who could be hired from a trade school.

2. The degree requirement is common to the industry for parallel positions in other organizations or the position is so complex that it clearly calls for a degreed person. Because it is difficult to show that a position “inherently” calls for a degree, it is crucial to submit evidence that other employers have the same requirement for similar positions whenever possible. This may be particularly hard to do for smaller companies, so they may need creative counsel to cross this hurdle.

3. The employer normally requires a specially trained degree or its equivalent for the position. An employer should be prepared to prove this element with payroll records, resumes or even copies of degrees of employees who have held this position.

4. The nature of the duties for the position is so specialized and complex that the knowledge required to perform such duties is usually associated with attainment of a bachelor’s or higher degree. This can be a hard test to pass for certain positions, such as that of marketing manager for a small company. The AAO has ruled that surveying and analyzing industry trends or prices, or adopting marketing strategy, by itself, does not require specialized training.

To find out more about meeting the tests of a “specialty occupation” for purposes of hiring a temporary foreign worker, see the pertinent section of our Website regarding H-1B, H-1B1, E-3 and TN visa applications.