Now that the annual H-1B Cap season is underway, employer sponsors of the slightly less than 85,000 individuals who were lucky enough to have their names selected in this year's (FY 2023) Regular Cap and US Master Degree Cap lotteries (out of an estimated 300,000 names that registered) are busy preparing their H-1B petitions for filing before the June 30, 2022 deadline.

The grossly unfair and unjust shortage of annual H-1B visas mandated by a Congress which for more than three decades has persisted in regarding skilled, educated legal immigrants as more of a threat to America than a benefit, is only one aspect of a system which is titled against these immigrants - many of whom come from China and India - in many different respects. One of the most important of these is the actual decision-making,

During the Trump/Miller regime, which actively tried to destroy the entire H-1B program by redefining the key H-1B concept of a "specialty occupation" so as to eliminate almost all job titles from H-1B eligibility. the rate of USCIS RFE's and denials of H-1B petitions reportedly skyrocketed. But openly biased and unfair agency decision-making against H-1B applicants ("beneficiaries") and their employer sponsors has been around for amlst as long as H-1B has been in existence.

On of the man lines of attack by USCIS and its predecessor INS against H-1B petitions over the years has been based on the argument that the offered H-1B job doesn't qualify as a "specialty occupation" - a key requirement for H-1B requirement for H-1B approval. At the outset, it is important to bear in mind that this requirement has nothing to do with the H-1B beneficiary's qualifications. An H-1B petition for even the most brilliantly educated and experienced H-1B beneficiary can be (and very often is) denied on the grounds that offered H-1B position itself doesn't meet the requirements for H-1B approval.

Therefore I will begin by looking at what the legal requirements are for an H-1B specialty occupation.

To be continued in Part 2 of this 2-part series.

Roger Algase
Attorney at Law
Harvard Law School LL.B
Harvard College A.B.

Roger Algase is a New York-based immigration lawyer with more than 30 years experience representing H-1B employers and workers.