2008 H-1B Series: Offering the Right H-1B Position
William, a Chinese citizen, is a recent graduate of an American MBA program and has been offered a job as manager of a product distribution center. His employer files an H-1B petition on his behalf, listing “General Manager” as the position offered. With his MBA, William is certainly qualified for this job, but will USCIS approve his employer’s H-1B petition? Probably not. Keep reading to find out why.
General Description
H-1B petitions offer employment to a “person in a specialty occupation, fashion model of distinguished merit and ability, or person providing service related to a Department of Defense (DOD) cooperative research and development project or co-production project.” The vast majority of H-1B petitions are filed for specialty occupations.
A specialty occupation is defined by law as a job requiring:
- Theoretical and practical application of a body of highly specialized knowledge and
- Attainment of a bachelor’s or higher degree in a specific specialty (or its equivalent) as a minimum for entry into occupation in the U.S.
Examples of typical specialty occupations include: accountant; chef; chiropractor; computer programmer; database administrator; dietician; electronics specialist; fashion designer; industrial designer; investment analyst; journalist; librarian; marketing research analyst; pharmacist; social worker; and software engineer.
For approval of an H-1B petition, the beneficiary must not only be qualified to fill the position, the position MUST qualify as a “specialty occupation.” This is the problem with the petition filed on behalf of William (above). Legal precedent has determined that the job of General Manager is not a specialty occupation unless the business to be managed is very complex.
Specific Criteria for Determining a Specialty Occupation
In order to claim classification as a specialty occupation, the USCIS requires that the offered position meet at least one of the following criteria:
- A baccalaureate or higher degree, or equivalent, is normally the minimum requirement for entry into the particular position;
- A degree requirement is common in the industry in parallel positions among similar organizations, or alternatively, that the particular position is so complex or unique that a degree is required;
- The employer normally requires a degree or equivalent; or
- The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree.
In many cases, including William’s, it is unclear whether the position offered fully satisfies any of the criteria above. Some “General Manager” jobs could be easily handled by any competent person with a two-year Associate’s Degree, or even by a high-school graduate with a few years of experience. Other positions that also carry the title “General Manager” may be extremely complex, requiring mastery of specialized skills and a large body of theoretical knowledge. Consider the difference between the manager of a large aircraft construction plant and the manager of a McDonald’s store.
The key in this situation is to describe the position offered in language that emphasizes the specialty nature of the position. Ideally, the requirements for this position will precisely match the academic specialties or strengths of the petition’s beneficiary.
Examples
The following two examples will illustrate this idea:
- A manufacturing company initially offers the position of “Account Manager” to an Indian client with a MBA from India. Normally, “Account Manager” is not considered a specialty occupation. However, the company changes the name of the position to “International Logistics Specialist” and emphasizes the need for international experience and familiarity with theories of logistical management. Now the H-1B petition is much more likely to succeed.
- A restaurant specializing in Russian food offers the position of “Cook / Kitchen Manager” to a client with a Bachelor’s degree and a few years of experience. The H-1B is denied. The restaurant learns that the applicant’s degree was in Nutrition. The new position is advertised as “Russian Food Nutritionist / Cuisine Designer,” and stresses the need for formal study of theories of nutrition. This job is subsequently accepted by USCIS as a specialty occupation.
Qualifying for a Specialty Occupation
Once the offered position is accepted by USCIS as a specialty occupation, the next step is to determine whether the beneficiary qualifies for this position.
Assessing Education:
Obviously, any person with a Bachelor’s degree in a specialized field of study will be considered suitably qualified for a job directly related to that field. A person with a Bachelor’s in Chemistry will be qualified as a Chemical Lab Technician, for example.
It becomes more difficult when the Bachelor’s degree is in an indirectly related field. Usually, degrees in the sciences can transfer to another science field. Someone with a degree in Chemistry should qualify for a job in a biological field. Someone with a degree in Physics should qualify for a computer science job, whereas someone with a degree in English will probably not.
A Master’s degree is suitable for any related field, even if the underlying Bachelor’s degree is unrelated. An applicant with a BA in History and an MA in Computer Science will be qualified for a Computer Science job.
Assessing Experience
In two cases, experience can be substituted for formal study.
- When the applicant has three years of formal higher education, and has at least three years of experience, those years of experience may be considered the equivalent of the necessary fourth year of study.
- If the applicant has no higher education, or has a 2-year Associate’s Degree, but has substantial experience (at least 10 years of experience), she may be considered qualified.
There is typically no middle ground between these two examples. For example, six years of experience plus a 2-year Associates Degree is generally not acceptable.
Conclusion
In our initial example, the H-1B petition on behalf of William will not be accepted unless his employer can demonstrate that the offered position is truly a specialty occupation. The best way to do this is to choose an appropriate title and description that maximizes the emphasis on education and qualification, particularly those qualifications that William already possesses.
When you are unsure how to construct a proper job description that will be accepted by the USCIS, or if you are unsure whether you qualify for a particular specialty occupation, take advantage of the extensive H-1B experience and advice available at Zhang and Associates, PC.
---------------
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nation-wide in all aspects of U.S immigration laws. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Houston: 7324 Southwest Freeway, Suite 1088, Houston, TX 77074
Chicago: 6 E. Monroe St. Suite 602, Chicago, IL 60603
New York City: 1350 Broadway, Suite 1710, New York, NY 10018
Austin: 919 Congress Avenue, Suite 900, Austin, TX 78701
Tel：1-800-230-7040, 713-771-8433
Email: info@hooyou.com
website：http://www.hooyou.com
In the moment of dynamics, our clients can always count on us.
(01/23/2008)
Refer this page to a friend
