Question: Does an applicant need an engineering degree to qualify for TN visa status under the Software Engineer category?
Reply: Contrary to the interpretation of some U.S. immigration officials, we believe that the TN visa regulations do not require a specific engineering degree to qualify for TN visa status as a Software Engineer.
The TN visa regulations allow a professional to enter the U.S. to render pre-arranged professional services as an Engineer provided he/she possesses one of three credentials: (1) A Bachelor’s (Baccalaureate) degree; (2) Licenciatura Degree; or (3) State / Provincial license. 8 C.F.R. § 214.6 (c).
The regulations provide no further guidance on the types of degrees suitable for a TN as an Engineer. A legacy INS Memorandum discussing the adjudication of NAFTA applications acknowledged that the TN visa Engineer category encompassed all engineering disciplines including Software Engineering. Cronin Memo (2000). On the question of the minimum educational requirements for a TN visa, this memo stated that a “degree should be in the field or in a closely related field” and that “a degree in an allied field may be appropriate.”
Referring to a TN visa for a Software Engineer, the memo stated that it “is reasonable to require the TN applicant to provide evidence of a degree in engineering just as it is reasonable to require an engineering degree for admission as a TN to perform professional level duties as civil engineer.” However, the memo also made it clear that the Hotel Manager category is the only TN category that requires a specific degree in the field.
A USCIS Bulletin also states that “Engineers may not fill computer-related jobs under TN classification unless they have credentials as computer or software engineers from institutions that recognize computer or software engineering as bona fide engineering specialties offering full engineering credentials, such as professional engineering licenses.” USCIS, Employer Info. Bulletin 11 (2005).
Some immigration officials have referred to the Cronin Memo and the USCIS Bulletin to deny TN visa applications under the Software Engineer category for individuals who do not possess an Engineering degree as outlined above. We believe that this is an overly restrictive interpretation of the TN visa regulations and contrary to U.S. Department of Labor guidance.
For example, the U.S. Department of Labor’s Occupational Outlook Handbook (OOH), which should be referred to on questions of applicable degrees, states that the “usual college majors for applications software engineers are computer science, software engineering, or mathematics.” The OOH also states that “[e]mployers who use computers for scientific or engineering applications usually prefer college graduates who have a degree in computer or information science, mathematics, engineering, or the physical sciences.”
In light of the potential for refusal on this issue, an individual who does not possess a computer or software engineering degree, but who may otherwise qualify as a Software Engineer based on a suitable degree as provided in the OOH or other authority, should consider retaining the services of an attorney who can assist in preparing an application that properly outlines the applicant’s eligibility for TN visa status.