Documenting the position as H-1B specialty occupation
One of the difficulties in preparing an H-1b petition is documenting that the position is an H-1b specialty occupation. Most of the issues involving this matter are discussed below.
Question: What are the documentations necessary to prove that a position is a specialty occupation?
Answer: A well-prepared case on the inclusion of a position as a specialty occupation should do the following:
- Describe job duties that are sufficiently complex and involve a level of knowledge and skill that require the services of a person skilled in a specialty occupation.
- Demonstrate that a bachelors or higher degree in a specific field of endeavor is the normal entry-level requirement for the position.
- Document that the employer requires a degree for other employees in parallel positions.
- Document through industry and labor sources that a degree is normally required for parallel positions in similar firms, i.e. the same size, product and type or clientele.
- Document that the position of responsibility and authority is commensurate with professional standing, by showing that the position requires supervision of a substantial number of other employees including quality review of the work of other professionals, and that the position involves responsibility for a significant budget or sales revenues.
- List salary level that is reflective of professional standing.
- Document that the employers business operations are so much more complex and sophisticated than the norm that it may require credentials to fill positions those other employers might fill with non-degreed persons.
Proof on this point need not be submitted for certain obvious fields such as lawyers, accountants, engineers, teachers, professors, physicists, chemists, and research librarians. In other positions, the employer need to carefully define the job and specify duties so that a reasonable judgment can be made regarding the specific job offered is an H-1b level position. A good starting point is the Department of Labor Dictionary of Occupational Titles (DOT), which contains detailed breakdown of job titles, listing specific duties applicable to each title. The Department of Labor also publishes a volume entitled The Occupational Outlook Handbook (OOH), and this volume, divided by generic occupational categories and coded to the DOT, often contains general educational requirements for entry into a field
Other evidence of industry standards with regard to degree requirements include publications of industry or trade associations, or publications of professional associations for various occupations that indicate the usual standard for admission into the association. This material may include university materials such as materials discussing preparations for careers. The company may also solicit affidavits from persons who are recognized authorities in the field, such as university professors or other leading companies in the industry.
In the case of small employers, the INS may request documentation such as company’s tax returns and payroll records to ascertain the size of the company. The employer will need to present a particularly strong case that it needs a specialty occupation, such as by demonstrating the nature of its clients or if prestigious clients do not yet use the employer, whether it is in competition for these clients and how it intends to obtain them. If the employer can demonstrate expansion plans, backed by adequate financing, it might be able to show that a specialty occupation worker is required to make the expansion plans a success.
Note: This is not a legal advice. Each case has a different set of circumstances, Thus, you may need to consult with a lawyer.
Source: by: Crispin Lozano California Examiner 01/09-15/2002
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