USCIS ACCEPTS MULTIPLE DEGREES

WHEN IT HIRES FOR SPECIALTY OCCUPATIONS;

WHY CAN’T H-1B PETITIONERS?

 

Copyright @2019

Gerard M. Chapman

Greensboro, NC

 

Government Claims to Support Business

 

Calvin Coolidge is the first president to be quoted as saying that “the business of America is business.”  Nearly 60 years later, Ronald Reagan used the phrase during his 1980 campaign and in speeches during his time as president. Interestingly, both men were champions of a smaller federal government, as well as advocates of immigration as a positive economic force.

 

In recent years, a similar refrain (“we will cut red tape and unnecessary government regulation”) dominates state and federal campaigns. The Trump administration frequently, but not always, has delivered on that promise.

 

Business Immigration: Not so Much

 

One exception to this claimed support for business arises in the immigration field, and ironically in the area of business immigration, specifically in H-1B cases.[1]

 

The H-1B visa category is used by a wide range of industries in the private sector as well as academic institutions and governmental entities. Among other things, the regulations require a sponsoring employer to prove that the offered job requires any applicant to possess a four-year degree that is closely related to the job duties.  Where that is the case, the job is considered to be a Specialty Occupation. Until relatively recently, USCIS and the Administrative Appeals Office (AAO) interpreted this to mean that the case could be approved if the evidence showed that the job required one of several closely related degrees.

 

USCIS and AAO Take Overly Restrictive Route

 

In recent years, however, the AAO has upheld restrictive USCIS decisions that have denied H-1B Petitions where the job was one for which more than one closely related degree is proper.  USCIS admits that its position is based on its interpretation of the statutory language: i.e., that the attainment of a four-year degree means that one, and only one, degree is acceptable.

 

This interpretation conceivably could be reasonable if there was some logic behind it, or if business practice supported it, or if USCIS even followed it when it advertises for available Specialty Occupations with that agency.[2] But business practice recognizes that several closely related degrees are appropriate for multiple specialty occupations.  So does the leading Department of Labor publication.

 

And, as the following materials show, so does USCIS when it advertises and hires candidates for Specialty Occupations.

 

OOH MATERIAL AND USCIS JOB OPENINGS SHOW THAT

NORMAL BUSINESS PRACTICE IS TO ACCEPT MULTIPLE COSELY RELATED DEGREES

FOR SPECIALTY OCCUPATIONS

 

The Occupational Outlook Handbook (OOH) is published by the US Department of Labor.  It provides relevant information regarding jobs that US workers perform; the work environment in which they perform those jobs; education, training, and other qualifications that the standard applicant possesses; average pay the workers receive; the job outlook; information on state and area data; similar occupations; and sources of additional information.  The OOH is recognized as a reliable source for all of this data.

According to the OOH, employers frequently list a range of possible fields of study, and do so for Specialty Occupation positions. A review on January 17, 2019, of listed openings on USCIC websites demonstrates that USCIS also follows this practice, and accepts multiple degrees for several Specialty Occupations for which USCIS has current openings.

 

I. Statistician

 

A. Proof that job is a Specialty Occupation

 

  1. O*Net Shows Job requires minimum of bachelor’s degree

The O*Net section for Statisticians confirms that incumbents in this job have these degrees:

  1. Bachelor’s degree 28%
  2. Master’s degree 48%
  3. Doctoral degree 20%

Based on these figures, it is beyond question that a statistician position requires any applicant to have, at a bare minimum, a proper 4-year BS degree (28% of those surveyed).  In fact, most of these positions are held by individuals with either Masters or Doctoral degrees (total of 68%).   The position therefore is a Specialty Occupation, so it qualifies as a job that will support an H-1B petition.

 

  1. Offered USCIS salary confirms position is Specialty Occupation

A recently posting for a Washington, DC, based position for Supervisory Statistician with USCIS confirms that the job offers a salary range from $114,590 to $148,967 per year.   At that salary, the occupation clearly calls for a professional, i.e., further proof that the position is a Specialty Occupation.

 

B. Proof of Standard Hiring Practices

 

The following materials demonstrate that private employers and USCIS will accept a range of relevant degrees from applicants for this position.

  1. OOH

The OOH section for “How to Become a Mathematician or Statistician” states:

“Most Statisticians have degrees in mathematics, economics, computer science or another quantitative field.”

  1. USCIS

A recent USCIS job listing for the position of Supervisory Statistician in Washington, D.C., has specific education requirements, but still appears to give candidates the option of presenting any reasonably related degree:

“A.   Degree:  that included 15 semester hours in statistics (or in mathematics and statistics, provided at least 6 semester hours were in statistics).”

The ad does not specify any particular degree.  It simply says  “Degree.”

The USCIS job posting continues, and says that the applicant must have:

“9 additional semester hours in one or more of the following: physical or biological sciences, medicine, education, or engineering; or in the social sciences including demography, history, economics, social welfare, geography, international relations, social or cultural anthropology, health sociology, political science, public administration, psychology, etc.”

The USCIS posting then confirms that a degree is not the only way a person can qualify; it also allows an applicant to show:

“B.  Combination of education and experience  — courses as shown in A above, plus appropriate experience or additional education.   The experience should have included a full range of professional statistical work such as (a) sampling, (b) collecting, computing, and analyzing statistical data, and (c) applying statistical techniques such as measurement of central tendency, dispersion, skewness, sampling error, simple and multiple correlation, analysis of variance, and tests of significance.”

  1. INDEED

On the job posting website Indeed.com, Duke University and Duke University Health System recently posted an opening for Statistician III. The posting lists the educational requirements as:

“a Master’s degree in statistics, (bio) statistics or related field and 2 years relevant experience, or

“a Bachelor’s degree in statistics, (bio) statistics or related field and 4 years relevant experience.”

The Carolinas Center for Medical Excellence also posted a Statistician job opening to Indeed.com. The posting says one of the requirements for the position is:

“Master’s degree preferred, in a related field (e.g., Statistics, Mathematics, Bio-Statistics).

For this job, USCIS conducts its hiring activities just as Duke University and the vast majority of other private employers do, by accepting any number of properly related degrees for the offered position.

 

II. Management Analyst

 

A. Proof that job is a Specialty Occupation

 

  1. O*Net Shows Job requires minimum of bachelor’s degree

The O*Net section for Management Analyst confirms that incumbents in this job have these degrees:

  1. Bachelor’s degree 38%
  2. Master’s degree 46%
  3. Post-baccalaureate certificate 12%

These figures demonstrate that a Management Analyst position requires any applicant to have, at a bare minimum, a proper 4-year BS degree (38% of those surveyed).  In fact, the large majority of these positions are held by individuals with either Bachelor’s or Masters degrees (total of 84%).   This data shows that the position is a Specialty Occupation.

  1. Offered USCIS salary confirms position is Specialty Occupation

The posting for a position with USCIS for Management and Program Analyst confirms that the job offers a salary range from $56,233 to $106,012 per year.   At that salary, the occupation clearly calls for a professional, i.e., further proof that the position is a Specialty Occupation.

 

B. Proof of Standard Hiring Practices

 

The following materials demonstrate that private employers and USCIS will accept a range of relevant degrees from applicants for this position.

  1. OOH

The OOH section for the position of Management Analyst states:

A Bachelor’s degree is the typical entry-level requirement for management analysts. However, some employers prefer to hire candidates who have a master’s degree in business administration (MBA). Few colleges and universities offer formal programs in management consulting. However, many fields of study provide a suitable education because of the range of areas that management analysts address. Common fields of study include business, management, economics, accounting, finance, marketing, psychology, and computer and information science.”

  1. USCIS

USCIS has a recent listing for the position of Management and Program Analyst in Washington, DC on USAjobs.gov.  For a candidate to qualify for the GS-09 level, he or she must possess:

“one (1) year of specialized experience that equipped you with the skills needed to perform the job duties.”

The posting goes on to list alternative ways to qualify:

OR

“You may also substitute successful completion of a Master’s or equivalent graduate degree or 2 full years of progressively higher-level graduate education leading to such a degree in an accredited college or university, or a J.D. or L.L.B. degree may be substituted for experience at the GS-9 grade level.  Such education must demonstrate the skills needed to do the work.  A course of study in business administration, public administration, or related fields is qualifying.”

It is striking that the job listing concludes with this statement:

“A course of study in business administration, public administration or related fields is qualifying.”

USCIS has repeatedly rejected cases where employers were willing to accept a Business Administration degree in H-1B cases, noting pointedly that such a degree is too general, and that, if the employer accepts applicants with such a degree, then the job clearly is not a Specialty Occupation.

But as the O*Net report demonstrates, some 84% of Management Analyst positions are filled by people holding BS or higher degrees, so it clearly is a Specialty Occupation.  That being the case, USCIS is criticizing employers in the private sector for accepting more than one degree, and for accepting applicants with degrees in Business Administration, for a Specialty Occupation where USCIS accepts a range of degrees, including but not limited to Business Administration.

The point is not to argue that general, unrelated degrees should be proper for H-1B cases; rather, it is that more than one specialized degree can be proper for a Specialty Occupation.  And, perhaps, that some Specialty Occupations actually call for a degree in Business Administration.

  1. INDEED

The job postings website Indeed.com has a listing from Wake Forest Baptist Medical Center for the position of Corporate Financial Analyst II.

The posting describes the required education for the position as:

“Bachelor’s degree in Business, Finance, Accounting, Healthcare or related field.”

Also, on Indeed.com, Lincoln Financial posted a listing for Life Inforce Management Consultant, which requires:

“[A] 4 Year Bachelors Degree in Business, Accounting, or Mathematics.”

 

III. Program Administrator (Training)

 

A. Proof that job is a Specialty Occupation

 

  1. O*Net Shows Job requires minimum of bachelor’s degree

The O*Net section for Training and Development Manager confirms that incumbents in this job have these degrees:

  1. Bachelor’s degree 52 %
  2. Master’s degree 19 %
  3. Post-baccalaureate certificate 15 %

Based on these figures, it is clear that a Training and Development Manager position requires any applicant to have, at a bare minimum, a proper 4-year BS degree (52% of those surveyed).  In fact, the large majority of these positions are held by individuals with either Bachelor’s or Masters degrees (total of 71 %).

  1. Offered USCIS salary confirms position is Specialty Occupation

The materials for the recent USCIS posting for Program Administrator (Training) confirms that the job offers a salary range from $114,590 to $148,967 per year.   At that salary, the occupation clearly calls for a professional, i.e., further proof that the position is a Specialty Occupation.

 

B. Proof of Standard Hiring Practices

 

The following materials demonstrate that private employers and USCIS will accept a range of relevant degrees from applicants for this position.

  1. OOH

The OOH section, “How to Become a Training and Development Manager,” describes the educational requirements for this position:

“It is most common for these workers to have bachelor’s degree in human resources, business administration, education or a related field. Some employers prefer or require training and development managers to have a master’s degree, usually with a concentration in training and development, human resources management, organizational development, or business administration.”

  1. USCIS

A USCIS job posting for Program Administrator (Training) in Washington, D.C.  confirms that several educational degrees are acceptable. The posting states that the Basic Educational Requirement is:

“[A] four-year (or higher) degree that included or was supplemented by major study in education or in a subject-matter field appropriate to the position.”

  1. INDEED

The company Zift Solutions posted an opening for Training and Educational Services Manager to Indeed.com. This job posting says the company is seeking candidates who have:

“[A] BS/BA degree in related field. MS in Instructional Design, Adult Learning or related field preferred.”

Another posting from Mountaire Farms Inc seeks a Training and Development Manager, and requires:

“[A] bachelor’s Degree in Human Resources, Business Management, Training, related field, or equivalent professional experience.”

Finally, a posting from Catalent Pharma Solutions for a Learning and Development Manager requires:

“[A] BSc/BA in Business, Psychology or Science related field.”

 

IV. Financial Manager/Analyst

 

A. Proof that job is a Specialty Occupation

 

  1. O*Net Shows Job requires minimum of bachelor’s degree

The O*Net section for Financial Analysts confirms that incumbents in this job have these degrees:

  1. Bachelor’s degree 61%
  2. Master’s degree 35%
  3. Associate’s degree 2%

These figures  confirm that a Financial Manager or Analyst position requires any applicant to have, at a bare minimum, a proper 4-year BS degree (61% of those surveyed).  In fact, the vast majority of these positions are held by individuals with either Bachelor’s or Masters degrees (total of 96%).

  1. Offered USCIS salary confirms position is Specialty Occupation

A recent posting for Mission Support Specialist with USCIS confirms that the job offers a salary range from $56,233 to $106,012 per year.   At that salary, the occupation clearly calls for a professional, i.e., further proof that the position is a Specialty Occupation.

 

B. Proof of Standard Hiring Practices

 

The following materials demonstrate that private employers and USCIS will accept a range of relevant degrees from applicants for this position.

  1. OOH

The OOH section, “How to Become a Financial Manager,” describes the educational requirements for this position:

“A bachelor’s degree in finance, accounting, economics, or business administration is often the minimum education requirement needed for financial managers. However, many employers now seek candidates with a master’s degree, preferably in business administration, finance, accounting, or economics.”

 

  1. USCIS

USCIS has a posting for the position of Mission Support Specialist listed on USAJobs.gov, with duties that include “management services essential to the operation of the Refugee Affairs Division (RAD) including, but not limited to, budget.”

At the GS-09 level, the Mission Support Specialist position requires:

“a Master’s or equivalent graduate degree” in “business administration, public administration, or related fields.”

Again, for this kind of position, USCIS has repeatedly rejected cases where employers were willing to accept a Business Administration degree in H-1B cases, noting that such a degree is too general, and that, if the employer accepts applicants with such a degree, then the job clearly is not a Specialty Occupation.

But as the O*Net report demonstrates, 96% of Financial Analyst positions are filled by people holding BS or higher degrees, so it clearly is a Specialty Occupation.  USCIS is criticizing employers in the private sector for accepting something other than one and only one degree, and for accepting applicants with degrees in Business Administration, for a Specialty Occupation where USCIS accepts a range of degrees, including but not limited to Business Administration.  If USCIS is going to accept more than one related degree for a Specialty Occupation, private employers should be able to do so, too.

  1. INDEED

The company Vaco posted an opening to Indeed.com for VP of Finance. The job posting requires candidates to have:

“A bachelor’s degree in finance, accounting or business administration. MBA a plus.”

A different posting on Indeed.com from the company Wasatch Photonics lists an opening for the position of CFO. That posting requires candidates to have:

“[A] Bachelor or Masters Degree in Business, Accounting, Finance or related discipline.”

Another posting for Chief Financial Officer from MedNorth Health Center requires:

“Graduation from an accredited college or university with a degree in accounting or finance.”

 

V. Conclusion

 

The above list of Specialty Occupations is not exhaustive, nor is it meant to be.  The reason for this list is to show that all employers filling such positions, both in the private and governmental (i.e., USCIS) sectors, accept a range of related degrees.   In accepting applicants with a range of degrees, employers are using common sense:  where several specialized degrees have similar, core course offerings, employers know that a person with any of those related degrees has achieved a basic understanding of the central disciplines that a properly qualified applicant must possess to perform the job.

Employers should not be criticized for using common sense in their hiring practices, nor should USCIS.  As the Court in RAJ & Company v. USCIS,  85 F.Supp.3d 1241 (WD Wash. 2015) so apply stated in finding that USCIS committed an abuse of discretion in denying RAJ & Company’s H-1B Petition, and granting plaintiff’s motion for Summary Judgment:

The first regulatory criterion does not restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.  Indeed, such an interpretation ignores the statutory and regulatory allowance for occupations that require the attainment of the ‘equivalent’ of [a] specialized bachelor’s degree as a threshold for entry.”

The point is not that any general degree should be proper for H-1B cases; rather, it is that more than one specialized degree can and should be proper for a Specialty Occupation, as long as the courses leading to the degree bear a reasonable relationship to the job duties.

On a less technical basis, it hardly seems fair[3] for USCIS, in denying H-1B Petitions, to ignore both the guidance of DOL (the agency with the most expertise in evaluating relevant degrees), as well as normal business practice, to deny H-1B cases, while at the same time engaging in the allegedly objectionable analysis when it advertises for, and evaluates candidates applying for, Specialty Occupations with USCIS.   If USCIS can accept more than one closely related degree for a Specialty Occupation, then petitioners should be able to do so, too.

 

 

[1] The research regarding the OOH provisions, private ads placed with Indeed, and the hiring practices of USCIS, all of which are discussed below, was conducted by Sydney Schaedel, paralegal with Chapman Law Firm, who is a 2017 graduate of the University of Pennsylvania.

[2] The author has added emphasis to all of the quoted materials in this article.

[3] Many in the author’s generation will recall phrases such as “pot calling the kettle black,” or “what’s good for the goose is good for the gander,” or that staple from the playground:  “No fair!”   In legal parlance, the phrases are “arbitrary, capricious and an abuse of discretion.”  Whatever the nomenclature, the essence of the objection is that a person or agency has to apply the same standard to itself as it does to those who bring cases before it.