Qualification of H-1B Workers

The category is limited to aliens who work in ''specialty occupations'' and to fashion models with "distinguished merit and ability."

Specialty occupations. The 1990 Act makes clear that determining who qualifies under the "specialty occupation" standard is the same as determining who qualified as a "member of the profession" in the old H-1 B category .The INS has informed this view by carrying over its previous rules for the H-1B category regarding members of the professions. Other groups included in the old category, however, such as "prominent" business person and other persons of "distinguished merit and ability," are no longer included in the new H-1B category, except for fashion models of "distinguished merit and ability" who were reinstated to the H-1B category in 1991 after being inadvertently eliminated when the category's coverage was changed by the 1990 Act.

The immigration statute has always contained a formal definition of members of the professions," but that definition is merely a partial catalog of the possible fields that may included as professions, e.g., teaching and engineering.

The INS rule regarding a specialty occupation highlights these elements:

• theoretical and practical application of a body of highly specialized knowledge 

• minimum entry - level requirements of a bachelor's or higher degree in  a specific occupational specialty 

• some fields with the requisite body of highly specialized knowledge include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

Although the INS definition attempts to emphasize the nature of the duties to be performed by the alien, in fact this type of analysis would be too difficult for the INS examiners, with their level of training and education, to perform in every case. Instead of looking at the actual duties to be performed, the INS has established a practical test for determining that a position involves a specialty occupation that emphasizes the qualification of the person filling the position and the usual practices of the employer in filling the position.

The most important factors reviewed by the INS in order of importance, are:

1. A bachelor's or higher degree in a specific field is the entry-level requirement.

2. The degree requirement is accepted throughout the industry in parallel positions among similar companies.

3. Absent such acceptance, the employer can show that the particular position is so complex or unique that a degree is required.

4. The employer's normal requirement for the position is a degree(i.e., other person filling parallel positions hold degrees or the prior occupants of the position held degrees).

5. The complexity of the specific job duties is usually associated with attainment of a degree.

6. The level of responsibility and authority involved in the position is usually associated with professional standing.

Fashion Models. H-1B fashion models do not need to meet the definition for "specialty occupations" included in the 1990 Act. Rather, they must meet the old H-1B standard for distinguished merit and ability: national or international renown, documented by such evidence as clippings showing modeling appearances in recognized and respected publications. The labor conditional application procedure must be followed by fashion models, for the discussion of the requirements for fashion models, as well as a sample case click on Qualifying the specific position to Be Filled by the Alien