Court Over Rules INS’ Standard for H1-B Temporary Work Visa

What is an H1-B? An H1-B is a non-immigrant visa that allows an alien to obtain temporary admission to the United States to perform services in a “specialty occupation.” H1-B visas allow the alien, his spouse and children, to lawfully remain in the US for up to six years. During this time an H1-B alien, who qualifies for a family based or employment based immigrant visa, can apply to have his or her visa adjusted to permanent resident status while still remaining in lawful status.

The problem aliens had often faced in their attempt to obtain an H1-B visa was the INS requirement that the job offer be in a “specialty occupation.” The law defines specialty occupations as jobs that require a professional who has a bachelor’s degree or its equivalent a field of specialty. Specifically, the INS would require the alien to possess a bachelor’s degree in a specific occupational specialty. For example, the INS would approve H1-B visas for professionals such as doctors, engineers, professors and lawyers.

The INS had generally taken the view that positions requiring general degrees, such as a bachelor of arts in business, were not specialty occupations. In the past the INS had even rejected H1-B applications where the position was for a vice president of manufacturing with a salary of $152,000 and duties to supervise over 1,000 employees. Although this clearly erroneous decision was reversed in federal court, employers of smaller companies were still unable to prove that the position they offered required the skills and knowledge of a person with a bachelor’s degree or higher in a specialized field. Aliens, with general degrees, were usually denied on their H1-B application.

However, in an important and recent ruling a federal court in Massachusetts ruled that the INS had ignored the guidelines for H1-B visas. Specifically, the court reversed the INS’s denial of an H1-B visa for an alien who had a general bachelor’s degree in business because the alien also had some practical training/experience. The court determined the combination of the degree and the training is “equivalent” to a bachelor’s degree in a field of specialty.

What this means is now aliens who have a generalized bachelor’s degree and some experience or training can qualify for an H1-B visa and obtain lawful status in the United States for up to six years.

Aliens – if you have are applying for an H-1B visa or have been denied on the issuance or renewal of an H1-B visa – you should be aware of the many rules and regulations that affect the approval of an H1-B visa. It is advisable that all aliens seeking to obtain an H1-B visa contact a qualified immigration lawyer who has experience with temporary work visas and experience in challenging INS decisions in federal court.