There are very few visa classifications that provide employment authorization in the U.S. to individuals who do not possess a bachelor’s degree. As result, this leaves many qualified IT professionals with job offers in the U.S., but with no apparent corresponding visa classification to obtain employment authorization under in order to legally work in the U.S.
One of the more popular visa classifications, the H-1B visa, does have provisions allowing an individual to combine lesser educational credentials and/or experience to obtain the equivalency of a U.S. bachelor’s degree. If these workers can obtain a degree equivalency, and a willing employer, then an H-1B visa may be appropriate. However, younger IT workers may not have the credentials to obtain a degree equivalency (e.g. 12 years of experience if no post-secondary education). Also, employers often do not want to take on the added burdens of the H-1B visa program (e.g. extensive filing obligations, wage requirements, and expensive filing fees).
While compared to the H-1B visa, the TN visa classification is often the most attractive immigration solution to employers of Canadian and Mexican citizens, it has limited options for non-degreed workers. Individuals may be eligible for one of the TN visa categories that only require a 2 year post-secondary diploma and 3 years of experience (e.g. the Computer Systems Analyst). But unlike the H-1B visa classification, an individual cannot combine lesser educational credentials and/or experience, to obtain an equivalency to satisfy the degree or diploma requirements for a TN visa.
The TN visa classification does have two categories that do not require a bachelor’s degree or a post-secondary diploma: the Scientific Technician and Management Consultant. Our office has been successful in obtaining TN visa status under the Scientific Technician category for IT workers who do not possess any post-secondary education, but who have some training and/or experience in software engineering, and who will work in support of a degreed IT professional in a position involving software engineering duties.
In order to qualify for TN visa status as a Scientific Technician (SciTech), an individual must possess: (a) theoretical knowledge of agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems, or the ability to perform basic or applied research in one of these fields. The individual must also work in support of a professional in the field. 8 C.F.R. § 214.6 (c). A 2002 government memorandum provides further interpretative guidance for the SciTech category and outlines five principles to consider in evaluating SciTech applicants.
We contend that IT workers who do not possess any post-secondary education, but who have some training and/or experience in software engineering, may qualify for a SciTech TN visa based on the 2002 government memo mentioned above, and upon another from 2000. The 2000 memo states that “no degree or post-secondary diploma is required for entry” under TN status as a SciTech. The 2002 memo adds that an applicant should have at least two years of training in a relevant educational program, which may be documented by a diploma, certificate, or a transcript accompanied by evidence of work experience. The earlier memo also states that “all engineering specialties,” including Software Engineering, fall within the ambit of the Engineering profession for purposes of TN status.
Since Software Engineering is included within the Engineering discipline for purposes of TN status, our office has successfully argued that individuals may perform Software Engineering duties under the SciTech category, which provides work authorization for individuals who possess theoretical knowledge of engineering. As no degree or post-secondary diploma is required for a SciTech, we have also had success in obtaining SciTech TN visas for individuals who lack a degree or diploma, but who have 2 years of education, training, or experience in the software engineering field.
As this is a novel argument, and may be unfamiliar to U.S. immigration officers, in order to secure TN visa status in these types of cases, our office assists in preparing a detailed employer support letter, and in securing sufficient documentation to establish an individual’s 2 years of training in the field. We prepare a legal brief that establishes eligibility for a SciTech TN by showing how the applicant satisfies all of the requirements for the TN pursuant to 8 C.F.R. § 214.6 (c). We specifically outline why a position involving software engineering duties qualifies for a SciTech TN visa, and how an individual who has no post-secondary education, but who has some training and/or experience in software engineering qualifies for a SciTech TN visa.