If you are a foreign specialist who wants to work in the U.S., you will most probably apply for the H-1B visa. This visa allows specialty workers, such as computer programmers, doctors or financial analysts, to work temporarily in the country.

But who is a specialty worker? USCIS currently applies a very narrow interpretation. As a result, number of denied H-1B visa applications grows. But this might change. In March, several court decisions favored a more rational approach.

Who qualifies for H-1 B visa?

That is the most important question. You must prove that the position you seek meets one of the criteria of a specialty occupation:

• Bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
• The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor’s degree in a field related to the position;
• 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 bachelor’s or higher degree.

What is a “specialty”?

USCIS consults the Department of Labor Occupational Outlook Handbook (OOH). The handbook gives and overview of jobs, entry level qualification requirements, salaries and other job-related conditions.

In some cases, the OOH states for an occupation that a bachelor’s degree is common, although not always a requirement. USCIS started to use this interpretation as a lack of specialty, which resulted in an increased denial rate.

Internal memo of the USCIS from 2017 redefined specialty occupation and made it harder to qualify, especially for computer programmers. Another memo instructed USCIS officers to look at each petition as if it was a first time petition.  This means that an application that was successful in the past will be closely scrutinized each time a reapplication is made. This resulted in decline of the number of approved visas.

More applications were denied

Between the years 2015 and 1019, denial rates for initial employment have increased significantly – from 6% in the fiscal year 2015 to 33% in the year 2019. Denial rates increased for continuing employment as well – from 3% in the fiscal year 2015 to 14% in the year 2019.

The increase in denials negatively impacted large tech companies, such as Amazon (7pp decrease between 2015 and 2019) or Microsoft (12 pp decrease between 2015 and 2019).

Consulting firms experienced an even more dramatic declines in qualified employees, with denial increases – Deloitte by 42 pp – from 18% to 60%, Accenture 46 pp– from 4% in 2015 to 50% in 2019. And those are prominent U.S. employers with highly qualified workforce.

Are computer analysts specialty workers?

In some cases, the USCIS decided that computer analysts are not specialty workers. USCIS denied an H1B visa for a computer system analyst because many system analysts have a liberal arts degrees. This implies that the position is not a specialty occupation.

USCIS relied on the Occupational Outlook Handbook which states that a bachelor’s degree in computer or information science is “common, although not always a requirement.”  A court disagreed.  The word, “common” should be interpreted as “normally” (see, Taylor Made Software v. Kenneth T. Cuccinelli). Some firms hire analysts with non-specialty degrees even though many firms normally require a specialty degree.  

Twice granted. Then denied.

You might be denied for a position even if the USCIS granted you a visa twice in the past for this exact same position. A restaurant manager with a bachelor’s degree in Hospitality Management was denied a visa renewal because many restaurant managers possess a bachelor’s degree in business administration.

In the opinion of the Court, the UCSIS decision was “arbitrary and capricious” (case India House v. Kevin McAleenan). The mere fact that the bachelor’s degree program in this field is offered implies that the body of knowledge is complex and unique.

A promising change

Recent case law indicates possible shift of the USCIS to a more liberal approach. Arguably, specialty workers bring new knowledge, new experience, and new ideas in support of the U.S. economy.

If you need more information on the H1-B visas, visit our website.