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LAW360 | Expert Analysis: Potential Pitfalls Of Hiring Without Degree Requirements

November 1, 2018

By Xavier Francis and Kane Vongsavanh, Erickson Immigration Group Attorneys

 

Employers might no longer be requiring potential hires to have a college degree as a prerequisite for employment. According to a recent report by Glassdoor.com,[1] 15 large companies, including GoogleAppleIBMand Bank of America, are the front-runners of this trend. Among the most popular occupations no longer requiring a college degree are engineers, product managers and marketing managers. This signals a significant change in hiring and recruiting standards as companies have traditionally required employees to have a college degree for these occupations.

A number of factors may be contributing to this trend, including the appeal of nontraditional forms of education in light of the increasing cost of college tuition, the perception that a college education is no longer providing students the required skills, or the view that vocational training or self-taught skills are enough for certain jobs in our modern economy. Whatever the reason, these companies are giving young job-seekers an opportunity to succeed and thrive in our modern economy without obtaining a college degree. Although forward-thinking, the absence of a bachelor’s degree requirement could present unforeseen challenges to companies’ immigration strategy, especially companies that seek to sponsor highly-skilled foreign nationals on U.S. work visas. Given the nature of the current immigration climate and the increased scrutiny by the United States Citizenship and Immigration Services toward employment-based visas, the absence of a college degree requirement may put companies at a strategic disadvantage when recruiting global talent. More specifically, the absence of a degree requirement for certain occupations may present challenges for companies that seek to sponsor H-1B workers.

The possession of a bachelor’s degree in a specific field is perhaps the hallmark requirement for the H-1B visa. Under current regulations, the H-1B worker must have a bachelor’s degree, its equivalent or higher (let’s say bachelor’s-plus) in a specific specialty. For example, a software engineer should have a bachelor’s degree in computer science and an accountant should have a bachelor’s degree in accounting. The H-1B regulations outline four criteria, one of which the employer must prove in order to qualify for the H-1B visa. These regulations include:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. (a) The degree requirement is common to the industry in parallel positions among similar organizations or, (b) in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Consider the implications associated proving criteria 2(a) and 3. An unforeseen challenge relates to practice of establishing a common industry degree requirement. These two regulatory criteria require employers to demonstrate (2)(a) “The degree requirement is common to the industry in parallel positions among similar organizations…” and (3) “The employer normally requires a degree or its equivalent for the position.” The second regulatory criterion is usually satisfied by submitting job postings or advertisements from similar companies or submitting letters and affidavits from industry-related professionals indicating that similar organizations recruit and hire individuals with a bachelor’s-plus for the same position. The third regulatory criterion is usually satisfied by submitting job postings, advertisements or organizational charts from the employer illustrating the existence of common degrees within specific subunits of the organization. If companies are no longer requiring a bachelor’s-plus for highly skilled occupations, it becomes increasingly difficult to convince USCIS that those positions are specialty occupations for H-1B purposes.

There’s somewhat of a dualistic relationship that must exist between the H-1B worker and the offered position. On the one hand, the employee must have the minimum qualifications for the position, i.e., bachelor’s-plus in a specific specialty. On the other hand, the position must require at least a bachelor’s-plus in that specific specialty. If the position no longer requires a bachelor’s-plus, the employer will fail to demonstrate it “normally requires a degree” for the occupation. Further, if an industry discontinues the requirement of a bachelors-plus, the employer may have difficulty demonstrating that such a requirement is “common to the industry.”

Limitations

The absence of a degree requirement is not an absolute roadblock to an H-1B visa approval as the regulations allow employers to provide alternative qualifications. As mentioned above, only one of the regulatory criteria listed above must be met to qualify for the visa. Thus, an employer can satisfy the requirements of a specialty occupation by using a number of alternative sources that won’t be discussed in great detail in this article. However, if the employer is able to articulate the complex and specialized nature of job duties, that may convince a USCIS officer to infer that a bachelor’s-plus in a specific specialty would be needed for the role. Additionally, the position may require the “equivalent” to a bachelor’s degree, i.e., progressively responsible work experience in a specific specialty or a combination education and experience. The problem with the equivalency requirement is the fact that the regulations make it clear that three years of work experience is the equivalent to one year of a four-year bachelor’s degree. Thus, an H-1B worker without a bachelor’s degree must be able to demonstrate at least 12 years of progressively responsible work experience in a specific specialty. This becomes problematic for those with little experience.

Future Implications

The absence of a degree requirement may challenge how we perceive future specialty occupations. If the absence of a bachelor’s-plus for highly-skilled positions becomes increasingly apparent in a company’s organizational hierarchy, staffing levels and recruitment standards, USCIS may raise its scrutiny toward those occupations that have traditionally required a degree. This will require attorneys and stakeholders to present more evidence and creative arguments that a position is a specialty occupation. With the mounting influx of H-1B-related requests for evidence and increased scrutiny by USCIS, such changes in hiring and recruiting standards may have an impact on a company’s success with sponsoring H-1B workers. As companies continue to modernize their hiring and recruiting standards, they should also consider the long-term or indirect implications it may have on their ability to recruit foreign talent and address best practices for overcoming these unforeseen challenges.