Broad Education Requirements Can Result in H1B Denials

As stakeholders are no doubt aware, the U.S. Citizenship and Immigration Services (USCIS) under the Trump Administration has taken a narrow view of the educational requirements that are permitted for a position to be considered a specialty occupation for H1B purposes. Specifically, the USCIS has been questioning whether a position requiring a bachelor’s degree in a more general field of study is too broad to be considered a specialty occupation. The USCIS is also skeptical of H1B petitions that list multiple degrees as acceptable in meeting a job’s minimum requirements, especially if the degrees are not directly related to one another.

Basic Requirements to Qualify for H1B – Specialty Occupation

In order for an H1B petition to be approved, the offered position must be a specialty occupation. Specialty occupation is defined under INA §214(i)(1) as a position that requires (1) the theoretical and practical application of a body of highly specialized knowledge, and (2) attainment of at least a bachelor’s degree in a specific specialty (or its equivalent) as a minimum entry into the occupation in the United States.

“General” Fields of Education

The USCIS has been interpreting “specialty occupation” increasingly narrowly, often denying an H1B petition if the position requires a more general degree. For instance, if the petitioner lists the minimum requirements as a bachelor’s degree in engineering, rather than to a specific field of engineering (e.g., mechanical engineering), it likely will be challenging to obtain an approval. Similarly, the USCIS now appears to disfavor positions for which the minimum requirement is a degree in business administration, claiming that this field of education is too broad and hence not limited to a narrow specialty.

Multiple Fields of Education also Problematic

The USCIS also tends to be suspicious if the H1B position lists multiple degrees that could be used to qualify for the same position. This is especially problematic if the listed degrees are not clearly related to one another. For example, while it may be acceptable for a petition to list the minimum requirements as a bachelor’s degree in computer engineering, information technology, or the equivalent, a petition that lists computer engineering, mechanical engineering, or the equivalent is likely to receive pushback from the USCIS.

Conclusion

Although the approval of H1B petitions has become more challenging of late, there are certain steps that can be taken to strengthen H1B filings. Employers should be mindful of the various trends related to education requirements and other criteria, when filing H1B petitions.

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