What is an E-3 specialty occupation, and can a pilot qualify?

The E-3 visa, which is a nonimmigrant visa reserved for nationals of Australia, can be an excellent option for Australians who want to live and work for an employer in the United States. In this post, we consider a question that has become increasingly common given the pilot shortage that the United States is currently experiencing: can a pilot qualify for an E-3 visa?

The E-3 visa – like the H-1B visa – is reserved for those who work in a “specialty occupation.” In general, a “specialty occupation” requires “theoretical and practical application of a body of specialized knowledge” and “the attainment of a bachelor’s or higher degree in the specific specialty, or its equivalent.”

The specific requirements for a specialty occupation are provided in the H-1B regulations, at 8 CFR 214.2(h)(4)(iii). To qualify for a specialty occupation, the position must meet one of the following requirements:

• Entry into the position must “normally” require, at a minimum, a baccalaureate degree or higher;
• The degree requirement must be common to similar positions in the industry, or, as an alternative, the employer can show that the position is so complex or unique that it can only be performed by someone with a degree;
• The employer usually requires a degree for the position; or
• The specific duties of the position are so specialized and complex that knowledge needed for the job is usually associated with having a baccalaureate degree or higher.

The key resource that the government uses in determining what qualifications apply to a given profession is the Department of Labor’s Occupational Outlook Handbook (or “OOH”), which can be found online here. Oftentimes, the officer is primarily looking at whether the OOH states that workers in the occupation normally have a baccalaureate degree or higher in the field of specialty. If they do, the officer will generally move on to the second part of their analysis: whether the person seeking the E-3 visa (the beneficiary) satisfies the requirements.

Specifically, the beneficiary must satisfy one of the following requirements:

• Hold a baccalaureate degree or higher required by the specialty occupation that was issued by an accredited college or university in the United States;
• Hold a foreign degree that is equivalent to a baccalaureate degree or higher required by the specialty occupation that was issued by an accredited college or university in the United States;
• Hold an unrestricted state license or certification that allows them to practice the specialty occupation in the state of employment; or
• “Have education, specialized training, and/or progressively responsible experience” that is equal to completion of a baccalaureate degree or higher in the United States, and “have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.”

In 2020, a series of federal court decisions held that U.S. Citizenship and Immigration Services (or “USCIS”) interpreted the definition of “specialty occupation” too narrowly. In summary, these cases centered on USCIS’s faulty requirement that instead of a degree normally being required for a specialty occupation, a degree must instead always be required for an occupation to qualify as a specialty occupation. This, courts held, was an illegal interpretation of the law.

One of the key cases in this series was Taylor Made Software, Inc. v. Cuccinelli, 453 F. Supp. 3d 237 (D.D.C. 2020). In Taylor Made, the District Court in Washington, D.C. reasoned that when the Occupational Outlook Handbook states that a bachelor’s degree is “common, although not always a requirement,” this suggests that the occupation is a specialty occupation since it seems to satisfy the regulation’s requirement that “[a] baccalaureate or higher degree [in a specific specialty] or its equivalent is normally the minimum requirement for entry into the particular position.” (8 CFR 214.2(h)(4)(iii)(A)(i)). Put simply, the court stated, “the regulatory criterion is not whether such a degree is always required, or whether some employers do not require it.”

In India House, Inc. v. McAleenan, 449 F. Supp. 3d 4 (D.R.I. 2020), a case decided a few days before Taylor Made, the District Court in Rhode Island held that USCIS illegally denied an H-1B application for a restaurant manager who held a bachelor’s degree in Hospitality Management. The court considered that the central question at issue is whether the occupation in question is “a specialized occupation for which a specific degree is required either by custom in the field or because of the duties of the job.” The court acknowledged that the OOH states that “many” people in the occupational category that includes restaurant managers hold a bachelor’s degree in business administration.

The court concluded that the position in question required, at a minimum, a specific degree – specifically, a bachelor’s degree in Hospitality Management or a related field. This, according to the court, satisfied the requirement that the occupation be a specialty occupation. The court held that the bachelor’s degree in Hospitality Management is a “specific degree” that was given “after successful completion of a set of courses that are not useful to any profession outside food services and hospitality management.” Additionally, the coursework for the degree “is directly relevant to the job description.” Finally, the court reasoned, “the very fact that there is a bachelor’s level curriculum dedicated to [the profession in question] is indicative of it being a specialty occupation” since, put simply, “[t]he degree exists because a focused curriculum is preparation for the specialty career.”

The court in India House also considered the applicant, making a number of points that are important when considering whether an applicant satisfies the specialty occupation requirements. Specifically, the court found it relevant that the applicant would work in a job that requires “deep knowledge” of a variety of subjects (in the case of the applicant in India House, this included knowledge of food, technology, marketing, equipment and maintenance, and finance), and that the business the applicant would be operating is not small (it had 60 employees).

It is also helpful to remember that the analysis above is relevant whether applying through USCIS or at a consulate. Consular officers are given broad discretion when determining whether an occupation is a specialty occupation, and the factors that persuaded judges in the cases mentioned above are also likely to persuade a consular officer. In fact, the Foreign Affairs Manual (or “FAM”), which serves as the basic organizational directive for consular officers, states (at 9 FAM 402.9-8(D)): “Although the term ‘specialty occupation’ is specifically defined [in the Immigration and Nationality Act], and further elaborated upon in [the Department of Homeland Security’s] regulations . . . consular determinations of what qualifies as a ‘specialty occupation’ will often come down to your judgment.”

Given the shortage of pilots that the United States is currently experiencing, some employers are wondering whether a pilot might qualify as a specialty occupation. Applying the information above, we first consider whether a baccalaureate degree is common to the profession. Taking a look at the OOH, we find that “[a]irline pilots typically need a bachelor’s degree in any field, including transportation, engineering, or business.”

But our inquiry does not stop there. Recalling the court’s reasoning in India House, there are a number of ways that an E-3 application can be strengthened. First, the government may consider whether the job requires a specific degree that is aligned with the profession, such as a bachelor’s degree in Aviation, for example. The government might also consider whether coursework required for the degree is “directly relevant to the job description.” Turning to the job itself, the application might emphasize aspects of the job that reinforce the idea that it is, in fact, a specialty occupation. This can include, for example, information about whether the pilot will be training others, supervising others, and/or making decisions that affect the company and his or her colleagues. The application might emphasize the broad range of subjects of which the applicant must have a deep knowledge.

By being thoughtful and deliberate, it is possible for a pilot to successfully pursue an E-3 visa. However, as noted here, a close familiarity with the laws, regulations, and opinions of the courts is essential when constructing a successful application.