H1-B “SPECIALTY OCCUPATION”
The H-1B program allows employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors.
The job must meet one of the following criteria to qualify as a specialty occupation:
• Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position
• The degree requirement for the job is common to the industry or the job 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
• 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.
Most registered nurses positions do not qualify as a specialty occupation because they do not normally require a U.S. bachelor’s or higher degree in nursing (or equivalent) as the minimum for entry into those particular positions. There are some situations, however, where the petitioner may be able to show that a nursing position qualifies as a specialty occupation. A few examples are pediatric nurse, rehabilitation nurse, oncology nurse. Depending on the facts of the case, some of these RN positions may qualify as specialty occupations.
The advanced practice registered nurse (APRN) positions occupy a higher level and would generally qualify as a specialty occupation because these normally require a U.S. bachelor’s or higher degree in a specific specialty as the minimum for entry into these particular positions.
The total allocation of visa numbers issued annually on the basis of skills and jobs is 140,000. The allocation of these numbers to “employment-based immigrants” is one component of the three-part selection system that also includes family-sponsored immigrants and diversity immigrants. The 140,000 numbers are in turn divided among five employment-based (EB) preference.
The first preference category (EB1) consists of aliens with extraordinary ability, outstanding professors and researchers, and certain transferring multinational executives and managers. The second preference (EB2) is for members of the professions who hold advanced degrees or their equivalent and for aliens of exceptional ability in the sciences, arts, or business. The third EB preference (EB3) consists of skilled workers, professionals, and other workers (those needing less than two years of experience), is also allotted the same percentage, in addition to any spilldown of remaining numbers from the first and second. Only immigrants in the second and third EB preferences are subject to the labor certification requirements.