By Atty. Mary Lyn Tanawan Sanga
A first in many consecutive years, USCIS is still accepting cap-subject H-1B petitions months after the filing season began in April of this year. As of October 30, 2009, USCIS reports that approximately 53,800 petitions have been filed out of the quota limit of 65,000. However, USCIS has observed an increase in filings within two weeks before Thanksgiving, which is a warning that the cap might soon be reached.
While those intending to file an H-1B petition subject to cap should not wait long, they should still carefully evaluate the qualifications of both the position and the beneficiary for classification under H-1B.
H-1B is the nonimmigrant visa category for specialty occupations. A “specialty occupation” is defined under the Immigration and Nationality Act as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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 regulations set forth four criteria, at least one of which must be met to qualify for H-1B classification. These criteria are:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. 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);
3. The employer normally requires a degree or its equivalent for the position; or
4. 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 in a specific specialty.
It is not enough that the beneficiary has a bachelor’s degree to qualify for H-1B. The beneficiary must have a bachelor’s degree in the specialty required to perform the proffered job. The same applies to the job requirements. The position must require not only a bachelor’s degree, but a degree in the specific field required to perform the job.
Based on recent requests for evidence issued by USCIS, the nature and complexity of the job duties are highly examined by USCIS. When determining whether a particular job qualifies as a specialty occupation, USCIS does not merely refer to the title of the occupation. USCIS is also interested in seeing that the petitioning organization is offering a credible and legitimate employment, which is consistent with the needs of the organization. The petitioning entity should be a business with a reasonable operation so that there would be a clear expectation for the proffered position in the company.
For more information, please contact Bander Law Firm.
While those intending to file an H-1B petition subject to cap should not wait long, they should still carefully evaluate the qualifications of both the position and the beneficiary for classification under H-1B.
H-1B is the nonimmigrant visa category for specialty occupations. A “specialty occupation” is defined under the Immigration and Nationality Act as “an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) 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 regulations set forth four criteria, at least one of which must be met to qualify for H-1B classification. These criteria are:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. 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);
3. The employer normally requires a degree or its equivalent for the position; or
4. 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 in a specific specialty.
It is not enough that the beneficiary has a bachelor’s degree to qualify for H-1B. The beneficiary must have a bachelor’s degree in the specialty required to perform the proffered job. The same applies to the job requirements. The position must require not only a bachelor’s degree, but a degree in the specific field required to perform the job.
Based on recent requests for evidence issued by USCIS, the nature and complexity of the job duties are highly examined by USCIS. When determining whether a particular job qualifies as a specialty occupation, USCIS does not merely refer to the title of the occupation. USCIS is also interested in seeing that the petitioning organization is offering a credible and legitimate employment, which is consistent with the needs of the organization. The petitioning entity should be a business with a reasonable operation so that there would be a clear expectation for the proffered position in the company.
For more information, please contact Bander Law Firm.
