Will USCIS Proposal to Redefine H-1B Qualifications Limit or Expand Eligibility?

U.S. Citizenship and Immigration Services (USCIS) recently published a comprehensive proposed rule related to the H-1B visa program for skilled workers.

Experts agree that much of the proposal codifies current policies and practices in favor of most employers that use the program, but new regulatory language has raised questions. One aspect in need of further clarification is the program's most important: the eligibility criteria for an H-1B approval.

USCIS is proposing to significantly modify the regulatory definition of a "specialty occupation," the standard used to determine if a position qualifies for H-1B sponsorship.

Currently, the statute defines a specialty occupation as "an occupation which requires theoretical and practical application of a body of highly specialized knowledge" and "which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum."

The proposed rule would codify the following:

• A specialty occupation position can require a range of degree fields, as long as there is a direct relationship between each degree field and the duties of the position.
• A position does not qualify as a specialty occupation if it only requires attainment of a general degree, without further specialization.
• The requirement that the position "normally" requires a bachelor's degree does not mean "always."

Immigration attorneys disagree on whether the proposed regulatory language will be more limiting or more amenable for employers and workers. There's even disagreement over whether the codifying language is indeed based on current practice.

"I get the impression that USCIS was trying to clear things up," said Kevin Miner, a partner in the Atlanta office of global immigration law firm Fragomen. But the language in the proposed rule still leaves a lot of uncertainty as to how USCIS adjudicators will evaluate H-1B petitions, and that lack of clarity is a real concern, he said.

"When there's a change in regulations, there is always some concern about how those regulations will be applied and what they will mean on a day-to-day basis," said Angelica Ochoa, a partner in the Denver office of Fisher Phillips. "But for the most part, the proposed rule codifies a lot of the guidance and policies that USCIS has already been using for years. And having that certainty is beneficial for employers."

Experts agree that codification of practices provides solid assurance for practitioners, but in this case, there is no clear consensus yet on what USCIS ultimately intends with its changes to the definition of specialty occupation.

Some experts say that allowing multiple degrees to qualify for a position is an expansive direction for the agency, while others argue that requiring that each degree directly relate to the position is a more restrictive position.

Multiple Degrees with a Direct Link

The proposed rule would revise the definition of specialty occupation for H-1B purposes to allow for a position to require a range of academic degrees, provided the degrees are related to the role. Immigration attorneys agree that the way USCIS puts this language into practice will be very impactful - it's just not clear how that will be done.

Andrew Wilson, a partner at Lippes Mathias in Buffalo, N.Y., explained that during the Trump administration, USCIS was leaning toward challenging an H-1B petition where more than one degree was listed as potentially qualifying for the position. "So if an engineering position required either a degree in mechanical or electrical engineering, they were starting to say that is not a specialty occupation because you are not requiring a degree in a specific specialty," he said.

"This proposed rule allows that a specific specialty does not have to be a single field of study. It can be more than one field of study, as long as there is a direct relationship between the required degree field and the position. For example, the H-1B candidate can have a degree in mechanical or electrical engineering to qualify for a position as an engineer, as long as the degree fields can be directly related to the position."

Wilson conceded that the burden of proof will be on the employer. "If you submit a candidate with multiple degrees, that is fine as long as it can be proven that all the degree fields relate to the position," he said.

Ochoa sees the change as beneficial for employers. "As an employer, you're looking for a minimum of a bachelor's degree in a specialty field, which has sometimes been interpreted as a singular field," she said. "But in the real world, that is not necessarily the case. A qualified employee could have a degree in a number of related fields, with the skills required to qualify for the position. This proposal will allow for greater flexibility with respect to being able to hire people with a wider range of degrees."

But others question how literal the agency's interpretation of the new regulatory language will be. "The language in the proposed regulation could be used by adjudicators at USCIS to deny H-1B petitions where the degree field doesn't precisely match what the adjudicator believes would be required to perform the role," Miner said.

He added that in practice, it's obvious that an applicant must have a learned skill set related to the role, and many times the person's educational degree lines up with the role, but in those cases where the degree is not a direct connection, the applicant's coursework can qualify eligibility.

"Right now, we can argue how the coursework qualifies the person," Miner said. "If you have a role which requires quantitative analysis, you might hire somebody with a degree in physics, who completed quantitative data coursework, or you could hire someone with a finance or mathematics degree with the same quantitative data coursework to satisfy the role's requirements. And maybe that understanding will continue, but if the agency intends to match the specific degree with the job and not take the coursework into account, that is concerning."

USCIS gives an example in the proposed rule, saying that a petition with the requirement of "any engineering degree" in any field of engineering for the position of software developer will generally not satisfy the eligibility requirement.

"That's just not accurate with reality," Miner said. "The reality is that a chemical engineering program, for example, could include a lot of software engineering as a part of coursework. And that goes for other engineering studies as well."

Other experts add that the focus on degree relevance neglects the importance of related experience. "It is a common mistake to think there is an exact correspondence between field of degree and occupation in the technical labor force," said Mark Regets, a labor economist and senior fellow at the National Foundation for American Policy (NFAP) in Arlington, Va. "In reality, employers often hire workers who have gained the necessary skills through other coursework and experience. It is unclear how closely USCIS intends to require an exact match between occupational and degree titles, but even assuming they use very broad categories, many current workers with temporary work visas might not meet the new criteria."

Regets pointed to NFAP research showing that 51 percent of U.S.-born workers and 18 percent of temporary visa holders working in computer occupations have a degree in a subject other than computer science or electrical engineering, and 48 percent of U.S.-born chemists and 15 percent of temporary visa holders have a degree in a subject other than chemistry.

Miner said the final rule must clear up this question. "There is hope that the final rule will contain language that will allow all of a person's educational evidence to be properly considered," he said. "USCIS would be far better off focusing on the entire course of study - including specific coursework completed - rather than the degree field."

No General Degrees

One change in the regulation that will be problematic for some employers is that a general degree, such as one in business administration or liberal arts, without further specialization, is not sufficient to qualify for an H-1B position.

"The proposed rule codifies the longstanding notion that some bachelor's degrees are general whereas others are specific, but provides little guidance in determining which degrees are too general," said Adam Moses, senior counsel in the New York City office of Harris Beach.

"A general degree will not work under this new proposal," Wilson said. "That's always been the case, but it would now be in the regulation. A position for a marketing manager that requires a [bachelor's degree] in business administration, for example, would not qualify for an H-1B. The degree would have to have a specialization in marketing or finance, for example."

Moses noted that if the provision on multiple degrees is as restrictive as some experts believe, then listing a general degree as one acceptable degree could preclude the position from being approved for an H-1B.

"For example, if an employer advertising for a marketing director role would accept a bachelor's degree in marketing, communications, or business administration, the position would not meet the new regulatory definition of a specialty occupation," he said.

Miner said he has worked with many employers who hire people with MBAs for certain roles.

"When I file for someone with an MBA, I don't just say this person has an MBA," he said. "I say that she did X, Y, and Z in her coursework in order to make the broader argument. And maybe that will still be OK. But if USCIS takes the proposed language and says we will only look at the degree field from now on, and not what the person actually learned, that will be a problem. And it would be a big change from what is practiced now."

‘Normally’ Is Not ‘Always’

One clarification that experts mostly welcome is the adoption of the definition that "normally" does not mean "always."

"The proposed rule would define the term 'normally' in the H-1B regulations to state that it means 'conforming to a type, standard or regular pattern,' and that it does not mean 'always,' " Moses said. "This change would clarify that just because there may be some employers who do not require a degree in a specific specialty for entry into an occupation, the occupation may nevertheless be a specialty occupation if a degree in a specific specialty is normally required."

The term "normally" had been interpreted in a more restrictive manner during the Trump administration, and the broader definition will now be codified.

Wilson explained that during the Trump years, USCIS argued that an occupation was not a specialty occupation if it did not "always" require a bachelor's degree.

USCIS claimed the definition of "normally" was "always" and used this to exclude computer programmers based on the Department of Labor's Occupational Outlook Handbook, which said computer programmers "normally" had a bachelor's degree as a minimum requirement for entry.

The Trump-era 2017 policy memorandum that redefined "normally" was rescinded by USCIS in 2021.

Ochoa said the proposed rule is simply codifying what has been the understanding among practitioners for many years: that a job usually or typically required a certain degree, even if some employers do not require it.