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Basic Information

The H-1B category is limited to foreign workers filling positions in “specialty occupations” for which the workers have the necessary credentials. A “specialty occupation” is defined by the INA as an occupation that requires:

  1.  • theoretical and practical application of a body of highly specialized knowledge; and
  2. • 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.

This definition is included in § 214(i) of the INA,  8 U.S.C.A. § 1184(i), and comes almost directly from the regulatory definition of a “profession” in the legacy INS rules prior to enactment of the Immigration Act of 1990.

Since this definition is so close to the one utilized for individuals of the professions in the prior H-1B rules, the legacy INS extended its earlier guidelines defining a profession and setting the norms for when an individual has the qualifications of an expert to the new “specialty occupation” H-1B classification.

Also explicitly included in the H-1B category following 1991 amendments to the INA are fashion models with “distinguished merit and ability.” Those models don’t have to satisfy the guideline for specialty occupations. Rather, they must continue to meet the standard for distinguished merit and ability applicable to such models under the old H-1B category. The distinguished merit and ability standard necessitates that people be “prominent” in their field of endeavor, as documented through specific types of proof listed in the rules.

Therefore, the only groups that were included in the H-1B category before October 1, 1991 that continue to be included in the current category are persons engaged in professions or “specialty occupations” and fashion models. The past bar on the admission of foreign medical graduates in the H-1B category to perform direct patient care has been removed (although certain conditions should be met to participate in such activities). Moreover, professional nurses are not barred from utilizing the H-1B program.