Now that the mandatory comment period for the notice of proposed rulemaking published by the USCIS last October has expired, we are all waiting to see what form the final immigration rule proposed by the government takes. As we wait, immigration attorneys have been getting plenty of questions about what is being called the ‘directly related’ degree mandate.
For the purposes of this post, we will refer to the mandate as the DRD. The mandate sparked quite a few passionate comments during the 60-day comment window. It is clear that a large number of employers are not happy with this particular aspect of the proposed rule.
A Rule Pertaining to H-1B Visas
The starting point for this discussion is understanding that the DRD is applicable to H-1B visas. As you may already know, the H-1B visa program targets foreign-born workers applying for specialty occupations in the U.S. H-1B visas are subject to strict qualification requirements purposely to ensure that employers do not use the program to bring in workers for non-qualifying jobs.
Under the current rules, qualifications for the H-1B visa focus more on a worker’s course of study and their proposed job duties while employed in the U.S. For example, a worker with a master’s degree in business could qualify for a visa even if the job he has applied for is not directly related to his degree. In other words, the current rule focuses more on the job than the degree.
The New Rule Turns That on Is Head
Based on the term ‘directly related’, you can probably guess that the new rule turns the existing rule on its head. If left intact when the USCIS finally publishes its final rule, foreign workers hoping to come to this country with an H-1B visa will need to have a degree that is directly related to the job being applied for.
Let us say an American company wants to hire a foreign-born scientist to help develop its AI technologies. That scientist’s education and training must be directly related to AI. Even the smartest scientist in the world could not come to the U.S. to work on AI if his only formal training is an MBA program.
The business degree has been mentioned in this post a couple of times. It is not by accident. We mention it simply because business degrees are considered general degrees under current regulations. They would still be general degrees under the new rule. Therefore, a business degree is not going to be as helpful as it once was when it comes to securing an H-1B visa.
The Impact on Business Immigration
Critics of the DRD say the fallout from the rule changes will be felt at multiple levels. First, the DRD will make it harder for certain types of workers to qualify for the H-1B program. Second, critics fear that it will also discourage at least some foreigners from coming to the U.S. to enroll in MBA programs.
Most importantly, critics believe the DRD will introduce unnecessary complexity and uncertainty for employers. Any additional complexity could be most profound for employers who rely on interdisciplinary teams comprised of both American and foreign-born workers.
No one knows when the final rule will be published, if at all. Most insiders are saying we should expect publication by the end of the year. Should the rule get published, Graham Adair will immediately evaluate it and assess its impact on business immigration. As business immigration attorneys, we owe it to our clients to understand the DRD’s implications for H-1B visa applicants.