A MASTERS DEGREE IN BUSINESS ADMINISTRATION (MBA) IS TOO GENERALIZED FOR H1-B SPECIALTY OCCUPATION CLASSIFICATION
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A MASTER’S DEGREE IN BUSINESS ADMINISTRATION (MBA) IS TOO
GENERALIZED FOR H1-B SPECIALTY OCCUPATION CLASSIFICATION
By Joseph P. Whalen (Friday, October 9, 2015)
Although the H1-B specialty occupation classification only demands that a
Bachelor’s Degree, be the minimum requirement for entry into a profession, the
acceptance of a “general”, “generic”, or “liberal arts” type of degree defeats the element of
specialization needed for a position to be considered one in a specialty occupation. The
Master of Business Administration (MBA) is an advanced degree beyond the
baccalaureate level but is too generalized to be considered as a degree in a specific
specialty. Positions where there is a specific work experience or career path requirement
or expectation, alone, in a specialized occupational field also fall outside the rubric of the
H1-B specialty occupation regardless of possession of a baccalaureate level degree or
higher because the possession of a specialized degree is not a minimum requirement for
entry into such profession. In other words, occupations that are broad-based and
which draw from a highly-variable pool of candidates who will “find a niche” with an
employer naturally fall outside the statutory definition and regulatory interpretation of a
specialty occupation requiring a baccalaureate level degree in a specific specialty as a
minimum requirement for entry into the profession. The need for a degree in a specific
specialty is the element that defeats the claim that possession of an MBA qualifies a
beneficiary for an H1-B specialty occupation or that the position itself qualifies as one.
Thanks to recent advancements at AAO, we now have the ability to cite to its Non
Precedent Administrative Decisions. These decisions are not controlling authority. See 8
C.F.R. § 103.10 (c). Non Precedents, however, may be cited as persuasive authority much
like District Court decisions to which AAO itself often cites. These two varieties of
decisions may be afforded Skidmore Deference due to their power to persuade.
SKIDMORE et al. v. SWIFT & CO., 53 F. Supp. 1020 (N.D. TX 1942) [Civ. No. 269.
July 23, 1942] dealt with private sector firefighters who remained on-call at the fire hall
on the employer’s property. They took turns sleeping there. They were only paid extra
(overtime)1 when an emergency arose. Regardless of the outcome of that case, it is cited
1 Back in 1942, these seven guys were paid an initial rate of 50¢ per hour, or 64¢ per hour thereafter for
answering calls. Emergency calls were rare. In total, their weekly salaries ranged from $27 to $29 per
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for its extensive reliance on reasoning from lower courts and the federal agency charged
with administering the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq.2
Specifically, the judgement of the Administrator of the Wage and Hour Division, U.S.
Department of Labor was found to be persuasive. This case was appealed to the 5th Circuit
Court of Appeals. Skidmore v. Swift & Co., 136 F. 2d 112 (5th Cir. 1943), affirmed the
judgement below and also relied on an administrative Interpretative Bulletin. The 5th
Circuit decision was appealed to the Supreme Court. Skidmore v. Swift & Co., 323 US 134
(1944), recognized the value of considering an administrative agency’s views and
interpretations of laws which that administrative agency been tasked with enforcing.
Below are two critical paragraphs from the Supreme Court ruling. It is the second
paragraph below which is most often quoted and even that is rarely presented in full.
Please read them carefully.
“There is no statutory provision as to what, if any, deference courts should pay to the
Administrator's conclusions. And, while we have given them notice, we have had no
occasion to try to prescribe their influence. The rulings of this Administrator are not
reached as a result of hearing adversary proceedings in which he finds facts from evidence
and reaches conclusions of law from findings of fact. They are not, of course, conclusive,
even in the cases with which they directly deal, much less in those to which they apply only
by analogy. They do not constitute an interpretation of the Act or a standard for judging
factual situations which binds a district court's processes, as an authoritative
pronouncement of a higher court might do. But the Administrator's policies are made in
pursuance of official duty, based upon more specialized experience and broader
investigations and information than is likely to come to a judge in a particular case. They
do determine the policy which will guide applications for enforcement 140*140 by
injunction on behalf of the Government. Good administration of the Act and good judicial
administration alike require that the standards of public enforcement and those for
determining private rights shall be at variance only where justified by very good reasons.
The fact that the Administrator's policies and standards are not reached by trial in
adversary form does not mean that they are not entitled to respect. This Court has long
given considerable and in some cases decisive weight to Treasury Decisions and to
interpretative regulations of the Treasury and of other bodies that were not of adversary
We consider that the rulings, interpretations and opinions of the Administrator under this
Act, while not controlling upon the courts by reason of their authority, do constitute a body
of experience and informed judgment to which courts and litigants may properly resort for
guidance. The weight of such a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade, if
lacking power to control.” At 139-140
2 As it existed at the time.
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Having set the stage, I want to take it to the next level and present an excerpt from
a new format, citable AAO Non-Precedent Decision. Just to remind the reader, this article
is discussing the inapplicability of a run-of-the-mill, garden-variety, mundane,
“We reviewed the chapter of the Handbook entitled "Management Analysts," including the
sections regarding the typical duties and requirements for this occupational category. 5 The
subchapter of the Handbook entitled "How to Become a Management Analyst" states the
following about this occupational category:
Most management analysts have at least a bachelor's degree. The Certified Management
Consultant (CMC) designation may improve job prospects.
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, political science
and government, accounting, finance, marketing, psychology, computer
and information science, and English.
Analysts also routinely attend conferences to stay up to date on current
developments in their field.
Licenses, Certifications, and Registrations
The Institute of Management Consultants USA (IMC USA) offers the
Certified Management Consultant (CMC) designation to those who meet
minimum levels of education and experience, submit client reviews, and
pass an interview and exam covering the IMC USA's Code of Ethics.
Management consultants with a CMC designation must be recertified
every 3 years. Management analysts are not required to get certification,
but it may give jobseekers a competitive advantage.
Work Experience in a Related Occupation
Many analysts enter the occupation with several years of work experience.
Organizations that specialize in certain fields typically try to hire
candidates who have experience in those areas. Typical work backgrounds
include management, human resources, and information technology.
U.S. Dep't of Labor, Bureau of Labor Statistics, Occupational Outlook Handbook, 2014-15
ed., Management Analysts, available at http://www.bls.gov/oohlbusiness-and-
financial!managementanalysts.htm#tab-4 (last visited September 9, 2015).”
Matter of R-S-, LLC, ID# 13902 (AAO Sept. 11, 2015),3 at pp. 7-8.
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In this particular case, the Petitioner, a retail pharmacy, sought to employ the
Beneficiary as a Management Analyst through an H1-B nonimmigrant visa. The above
case tells us that “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, political science and government, accounting, finance,
marketing, psychology, computer and information science, and English.” Id. Due to the
broad range of possible employment situations for Management Analysts, it does not fit
within the realm of the H1-B specialty occupation. The MBA may be a perfect match for
the position due to its flexibility and generalized nature which is also why it does not mean
a whole lot in an H1-B petition package.
That’s my two-cents, for now!
Joseph P. Whalen, Independent EB-5 Consultant, Advocate,
Trainer & Advisor
238 Ontario St., Apt. No. 6
Buffalo, NY 14207
Phone: (716) 604-4233 (cell) OR (716) 768-6506 (land-line)
web http://www.slideshare.net/BigJoe5 or http://eb5info.co