The Immigration and Nationality Act, allows a nonimmigrant who is coming temporarily to the United States to perform services in a specialty occupation to apply for H-1B status. The Act defines the term “specialty occupation” as an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and 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.
Congress intended the H-1B visa classification only for foreign workers who are to be employed in an occupation that requires the theoretical and practical application of a body of highly specialized knowledge that is conveyed by at least a baccalaureate or higher degree in a specific specialty. The USCIS regulations state that. “a specialty occupation means an occupation “which  requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which  requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”
Thus, to qualify as a specialty occupation, the position must also meet one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- 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.
The USCIS interprets the term “degree” to mean not just any baccalaureate or higher degree, but one in a specific specialty that is directly related to the proffered position.
The H-1B regulations are complex and require analysis of the job requirements, prevailing wage, industry practice, and the foreign national's qualifications.
An employer who wishes to sponsor a foreign worker should seek competent legal advice. The H-1B Visa Lawyers of Zneimer & Zneimer P.C. regularly deal with complex H-1B issues and can assist with procuring H-1B visas for foreign workers. We have handled difficult H-1B cases that involve 3-year degrees, and have successfully used combination of education, experience, and training as equivalence of a Bachelor degree.