H-1B Series: The H-1B Beneficiary's Required Qualifications, Part 2
George N. Lester IV
Importance of the Baccalaureate Degree Subject Matter
Having determined that the foreign national candidate has a U.S. or foreign equivalent bachelor's degree, the petitioner must focus on the importance of the degree's subject matter and its relation to the specialty occupation.
Under one formulation in the regulations, the foreign national's U.S. or foreign equivalent bachelor's degree must be "in the specialty occupation." Under another more flexible formulation appearing elsewhere in the regulations the foreign national must hold "a" baccalaureate or higher degree "required by" the specialty occupation, which suggests a less literal approach whereby the degree may be in any subject area that is considered a usual requirement or qualification for entering the profession, rather than one where the degree subject precisely matches the job title.
In practice, H-1B adjudicators at INS apply a standard of whether the subject matter of a foreign national's degree is "directly related" to the position's duties. Thus, for a software engineer or programmer/analyst position, the foreign national will meet the qualification with a degree in computer science because that subject is clearly "directly related." Conversely, if the foreign national's degree is in history or English, he or she will not meet such an H-1B requirement based on an academic degree because those subjects are not related to the position at all. A large number of cases will fall into a middle ground where the foreign national's degree is not precisely "in" the subject area of the job, but the petitioner is willing to hire the person because it considers the degree to be sufficiently related. In these cases the petitioner should explain in its supporting documentation how the degree is directly related to the job and, where appropriate, supplement the documentation with other evidence of the foreign national's qualifications in the specialty occupation such as letters verifying professional experience in the occupation or certificates/transcripts showing specialized training. These types of evidence are described in more detail in the next subsection.
Often a foreign national being offered a position as a software engineer or programmer/analyst has an engineering degree in a subject other than computers such as electrical engineering, mechanical engineering, or civil engineering, or in another noncomputer but technical academic subject such as mathematics, chemistry, or physics. Or a foreign national with a liberal arts degree in a subject such as economics or history is offered a business, marketing, administrative, or writing position.
In these situations INS has indicated that it does not apply a concrete set of rules regarding what degree subjects are considered directly related to what general specialty occupational categories. Rather, it applies a case-by-case analysis to each petition, which gives the petitioner the opportunity to provide individualized arguments but necessarily involves some amount of subjective judgment by the examiner.
Officials at the Vermont service center described the approach as using a "target" with a series of concentric rings. Using the programmer/analyst example, the "bullseye" would contain the precisely related subject of computer science. The first ring would contain subjects that the examiners find are not precisely "in" the specialty occupation but which are, in their opinion, sufficiently related so that with a good general explanation from the petitioner there would generally be no further question. Electrical engineering, electronics engineering, and mathematics were placed in this category.
In the next ring were subjects which begin to raise questions as to whether they are "directly related" to the job, but where the petitioner could overcome objections with more particularized, concrete explanations of how the degree is related to the particular job duties and/or additional evidence of work experience or special training in the occupation. Civil engineering, mechanical engineering, chemistry, physics, and similar subjects were placed in this ring. The "outer" rings in this example contained progressively more "unrelated" degree subjects such as nontechnical liberal arts degrees, etc., whereby the petitioner would have a harder time overcoming a presumption that a degree is not a proper qualification. This type of analysis can be quite fluid; every case is considered on its own merits.
Frequently, the INS analysis of whether a degree field is sufficiently related to the subject of the job is based on comments in the Occupational Outlook Handbook (OOH) [discussed in a previous article] as to what degree subjects are normally accepted by employers as qualifying for the occupation.
When the INS examiner becomes concerned that a foreign national's degree is not sufficiently related to the specialty occupation to serve as an adequate qualification, the petitioner will be sent a Request for Evidence seeking extensive additional documentation of the foreign national's credentials. The Request may also raise a related issue, suggesting that, if in fact the foreign national is unqualified for the specialty occupation because of the "unrelated" degree and a lack of ether experience or training but is being offered the job anyway, the petitioner must have overstated the job duties which are not professional. In such a situation, the Request will ask the petitioner for evidence of the type described in previous articles on the topic of what is a specialty occupation, concerning the number of other workers in the position, their degrees, the employer's prior hiring practices, etc. That type of Request for Evidence is difficult, because it is questioning the petition both ways - on whether the job is a specialty occupation and on whether the beneficiary is qualified. Care must be taken to respond thoroughly to both points.
For these reasons it is good strategic advice for the petitioner to spot potential "unrelated degree" problems and address them in advance, even if it means extra effort for the initial filing. For example, in recent years the INS has quite commonly issued Requests for Evidence that question the relevance of the academic qualifications regarding petitions for programmer/analysts with degrees in mechanical or civil engineering. In India, for example, those degrees are quite common, and persons with those degrees often proceed from the university directly to work in computer programming. Often they obtain additional training in computer science from technical schools.
There are three approaches when the petitioner's initial assessment suggests a potential "unrelated degree" problem. In the first, the petitioner prepares arguments based on the foreign national's academic achievements, work experience, and training in detail to highlight details in the beneficiary's background that directly relate to the job. In the example of the software engineer with a mechanical engineering degree, the INS may dispute whether the academic major is "directly related" to software engineering. Perhaps upon review of the foreign national's transcript, the petitioner can point to a specific record of course work in computer science or programming that the foreign national completed as part of the degree, or a special project or thesis that involved, say, designing a computer-aided mechanical engineering software application. The foreign national may have also worked as a research assistant in a computer lab or performed other on-campus computer engineering outside the classroom. The petitioner can then argue that, notwithstanding the degree title, the overall academic program undertaken by the foreign national involved a combination of computer science and mechanical engineering sufficient to be "directly related" to the software engineering position offered. This argument should be backed up by proper evidence, including official copies of the academic transcript, copies of any thesis or special project, and reference letters from an advisor or computer science professor. The company letter should contain detailed descriptions about what specific software tools and programming languages were used.
The more attenuated the foreign national's academic background is, the more the petitioner should also have the foreign national submit reference letters verifying professional experience in the field, or other professional training evidence. The INS has indicated that where a foreign national has a degree in a scientific or engineering subject, it will consider the degree at least partially related to a computer position and accept the degree with evidence of an additional two to three years or more of professional experience or training in the field. It would treat the case as one involving combined education and experience, but apply the standards for that type of case in a flexible manner.
To avoid receiving an INS Request for Evidence, in any situation where the foreign national's degree appears to raise "unrelated degree" questions the foreign national should be instructed to gather employment reference letters. Based on recent INS actions, this would be particularly advisable, for example, in situations where foreign nationals with mechanical or civil engineering degrees are seeking computer-related positions.
The second approach is more focused on the nature of the job itself, and calls for preparing a more detailed job description showing that the position involves a combination of duties which "cross over" to the area of the foreign national's credentials. It is appropriate to use this approach where the job title generally implies work in one field, but the actual job duties require expertise in another. For example, a programmer/analyst may be assigned on a consulting basis to develop software for medical devices. The "unique-needs" nature of the assignment may require someone familiar with medical terminology or anatomy. Thus a degree in biology, for example, although clearly not related to computer programming, would nevertheless provide the foreign national with the requisite expertise to develop software for medical devices. Or suppose a management consulting company must advise a client on effective means of controlling pollution. A degree in environmental science would be useful, but would not be considered the appropriate educational background for a typical management consultant.
In a more common form of such an argument, a software engineer may be assigned to develop advanced mechanical engineering CAD/CAM software for use by design and mechanical engineers. A mechanical engineering degree should be accepted by INS as a normal, directly related qualification. Similarly, a computer programmer may be assigned to perform programming in electronics engineering applications for embedded software used to control advanced electronics devices. An electronics engineering degree will be a normal, directly related qualification. The petitioner must highlight those aspects of the job duties to which the foreign national's background most directly relates.
In addition to matching the foreign national's qualifications with the specific job duties, it may be helpful to refer to any other employees with similar degrees in similar positions. If the employer is involved in a niche market that requires specific expertise such as a software development company that-creates software to manage manufacturing devices, this would be helpful in demonstrating why that specific expertise would qualify the foreign national for the position even though the person is lacking what might be a more traditional degree for the general job category. The petitioner should instead focus on the job description and explain how the job involves special duties which, notwithstanding a generic title in one occupation such as software engineer or programmer/analyst, actually involves combined subject areas for which the foreign national's background is particularly relevant.
Finally, in some cases the best argument will not be enough. The foreign national may have a bachelor's degree but in a subject so unrelated to the job that the petitioner makes a judgment that an alternative strategy is needed. In such a case, the petitioner must determine how much of the foreign national's education is at least partially related to the job and then establish qualification based on combined experience and education using formulas and strategies that will be described in the next article.
About The Author
George N. Lester IV is of the
Immigration Practice Group (the "Group") of the law firm of Foley,
Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm
of 200 lawyers in Boston and Washington, D.C. It was the first large
law firm in Boston to develop an expertise in business immigration
law, and for over thirty years its Group has represented employers in
a full range of procedures to obtain temporary or permanent
authorization to employ foreign professionals. Mr. Lester has
practiced immigration law for ten years, and regularly speaks to
business, academic, and professional groups on immigration topics. As
part of his regular AILA activities, Mr. Lester meets with officials
of the INS Vermont Service Center to discuss H-1B and other liaison
topics. He also serves as Treasurer and a Board Member of the
Political Asylum/Immigration Representation Project (PAIR) in Boston,
and received that organization's Pro Bono Attorney Award for
Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a
1989 graduate of Northeastern University School of Law.
This article is the tenth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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