March 22, 2023

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The United States Citizenship and Immigration Services (USCIS) has provided interested parties with further explanations about eligibility for H-1B petitions in specialty occupations. In addition, the USCIS website now has a footnote concerning the matter. The agency states that the previous administration attempted to limit the fields that qualify for an H-1B petition. Furthermore, the footnote stressed that the attempt did not equate to a policy in the USCIS.

The USCIS added the footnote to its website in the H-1B Specialty Occupations section. This section concerns occupations that typically require a bachelor’s degree. The footnote explains that readers should interpret the words “normally,” “usually,” and “common” by their typical definitions. As such, no one should take them as meaning always.

This clarification sets the current administration apart from the previous one, which had more denials and requests for evidence. At the time, the administration based these adverse decisions on questionable policy changes that took effect abruptly.

The USCIS website indicates that occupations in the H-1B category require the following:

• “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.”

The position must also meet one of the following criteria to qualify as a specialty occupation:

• “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 only an individual with a degree can perform it;
• 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 the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.*”

The asterisk marks the location of the footnote concerning the intended meaning of the words “normally,” “common,” and “usually.”

In light of these details, the previous administration saw two court decisions that dealt with the issue. In one decision, the judge determined incorrect judgment on the USCIS’s part regarding liberal arts degrees. The USCIS claimed that computer systems analysts with liberal arts degrees had obtained experience elsewhere. With this declaration, the USCIS claimed the position did not qualify as a specialty occupation.

The other decision also determined that the USCIS utilized incorrect judgment. In this example, the agency should not have used “normally” in the regulation to mean “always.” Accordingly, the judge declared this action a misinterpretation and misapplication of the law.

This recent clarification concerning H-1B specialty occupation eligibility should help many professionals, employers, and the economy. For example, it could allow them to acquire the high-skilled employees they need. Those employers who hire H-1B workers must remember to complete Form I-9s for these workers, as they do for all new hires. However, this process can confuse workers due to the many documents they may present. An electronic I-9 management system can make this easier by guiding employers through the entire process, thus helping to ensure correctly filled Form I-9s. The system will also securely store the form and accompanying documentation, making it easy to retrieve if needed.

Increase your hiring and verification efficiency today with I-9 Compliance automation.

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