Letter from APS leadership

APS H-1B Comment Specialty Occupation

December 21, 2023

Filed via Regulations.gov

Charles L. Nimick
Chief, Business and Foreign Workers Division
U.S. Citizenship and Immigration Services
Camp Springs, MD 20746

H-1B Modernization Notice of Proposed Rulemaking
(88 Fed. Reg. 72870)
DHS Docket No. USCIS- 2023–0005
RIN 1615-AC70
Specialty occupation definition Physics occupations

Dear Mr. Nimick,

On behalf of the more than 50,000 members of the American Physical
Society (APS) – the largest physics membership organization in the United States – I am writing to express concerns over the new proposed changes to sections 214.2(h)(4)(ii) and (iii) in Title 8 of the Code of Federal Regulations. As our membership includes both domestic and international scientists, students, and other physics professionals, appropriate and effective U.S. visa rules are a priority. U.S. national security and economic vitality critically depend on science and technology and strongly profit from the contributions of foreign-born scientists and engineers. Given the cross-cutting impact of the proposed changes, APS has joined a multisector letter, while also writing our own comment to provide specific examples of the impacts of the agency’s proposal on scientists and professionals with physics degrees.

We are concerned about the potential impact of the proposed changes on any international APS member interested in pursuing a career in the United States. We also want to highlight a particular research area that is critical to U.S. competitiveness and synonymous with physics: quantum science and technology. Quantum is a frontier field much like artificial intelligence, where many relevant jobs simply did not exist as few as 5 to 10 years ago. With more than 350 quantum startups already in existence, the quantum sector is poised to grow significantly as quantum computing, quantum sensing, and quantum communications technologies mature and become vital for U.S. national and economic security. Quantum workforce needs will only continue to grow. We need all hands on deck to leverage this new technology domain, including both domestic and foreign-born physicists.

We understand that the agency’s long-standing approach is that the H-1B petitioning employer is responsible for proving the connection between the beneficiary’s course of study and the offered job duties, and also proving that the job duties require the type of knowledge usually only obtained through completion of a university degree, or equivalent, at the bachelor’s level or higher.

The proposal published, however, does not codify that longstanding practice. Instead, the proposed H1-B rule change would require degree titles to be directly related to the job, the determination of which would be at the discretion of a USCIS examiner. This rule change would create uncertainty for a person with, for example, a physics degree seeking an H1-B position as, say, a climate scientist or optical engineer, given that the USCIS officer may not be aware of how those are salient.

We have two requests for the agency in finalizing the proposed rule to keep the updated and modernized version of the specialty occupation definition in keeping the agency’s many decades of H-1B adjudications:

(1) We ask that USCIS strike the requirement in the new H-1B rule that a specialty occupation can only be found if a degree is “directly related” to the job duties, by omitting the words “directly related” in the definition of Specialty Occupation at 8 CFR 214.2(h)(4)(ii) and from the Position Criteria Requirements at 8 CFR 214.2(h)(4)(iii)(A)(1)-(4).

(2) We ask that USCIS strike references that identify particular types of degrees or courses of study as being too general in the Specialty Occupation definition at 8 CFR 214.2(h)(4)(ii); where appropriate substitute “job duties of the position” or “job duties” for references to “the position” in the Specialty Occupation definition at 8 CFR 214.2(h)(4)(ii) and Position Criteria Requirements at 8 CFR 214.2(h)(4)(iii)(A)(1)-(4); where appropriate substitute course of study for “degree” in the Specialty Occupation definition at 8 CFR 214.2(h)(4)(ii) and Position Criteria Requirements at 8 CFR 214.2(h)(4)(iii)(A)(1)-(4).

Our two requests, detailed below, stem from the two defects we see in the agency’s proposed rule and their potential impact on both international experts earning degrees in physics and the U.S. research and development enterprise writ large.

USCIS should strike new “directly related” degree mandate

One indispensable trend in today’s hiring is selecting professionals with complementary specialties to form diverse, interdisciplinary teams. This is significant in academia, but also across industry – and is particularly important in emerging science and technology fields.

Physics is a diverse field covering a wide range of topics, from advanced materials to hypersonics to renewable energy. Consequently, the careers pursued after receipt of a physics degree are just as diversely titled. Beyond jobs specifically titled as physicist, scientist, or researcher, physicists can end up as Analysts, Consultants, Process Engineers, Software Engineers, and just about any title preceded by the word “quantum,” to name just a few.

Unfortunately, USCIS has chosen to provide an example in the preamble explanation of the Notice of Public Rule Making (NPRM) cautioning employers about requiring the type of quantitative and problem-solving skills developed in an engineering degree as unlikely to be “directly related” to a qualifying H-1B position, which suggests that, similarly, the quantitative and problem-solving skills developed in the physical sciences could lead to many foreign-born physics degree graduates not qualifying for H-1B classification. Moreover, physics is applicable in many endeavors such as remote-sensing, weather forecasting, medicine, advanced materials, defense technology, and energy technology. In 2020, 15% of new physics PhDs were in engineering positions, 17% in computer software and hardware, 13% in data science, and 13% in “other STEM fields.” The agency’s proposed rule suggests that many individuals graduating with physics graduate degrees may or may not be presumed to be employed in jobs “directly related” their education by a USCIS adjudicator.

In particular, we are concerned USCIS’s proposal on specialty occupation (definition and position criteria) makes it less likely, if not impossible, for the mandates of section 5.1 of Executive Order 144101 to be satisfied, particularly those provisions directing the Department of Homeland Security to facilitate the attraction and retention of foreign-born STEM experts working in artificial intelligence (AI), quantum information technology, and other critical and emerging technologies2.

Adding a new direct relatedness requirement to H-1B adjudications can only serve to create uncertainty and complexity for employers creating their interdisciplinary teams. This change is completely new, not a mere continuation of the agency’s long-time requirements.

References to degrees and positions should be reworded to focus on courses of study and job duties

As written in the H-1B Modernization NPRM, the new phrasing for the specialty occupation definition and criteria for specialty occupation positions is not precisely equivalent to the agency’s long-established interpretation and instead sets up an impractical standard for employers.

USCIS explains in the new NPRM that referring to the title of the degree is only for “expediency” and that the agency separately evaluates the beneficiary’s actual course of study, “rather than merely the title of the degree,” which is, importantly, consistent with university practices in reporting degrees conferred3. USCIS further states that while some fields of university study may be more generalized than others, the degree’s label cannot determine how general the course of study is. USCIS states in the NPRM preamble that as part of the H-1B adjudication, the agency looks at whether the individual has completed a minor, major, concentration, or specialization of courses related to the position offered by the employer4.

Nevertheless, USCIS has now proposed a binding regulation that will guide adjudicators for decades to come, over many different presidential administrations, that specifically refers to “degrees” and “positions” in ways that fail to accurately capture the contours of preexisting agency practices. The agency can achieve its goal by revised regulatory text that communicates that adjudicators are required to examine the job duties of the position offered by the employer and the courses completed in a degree-granting program (U.S. baccalaureate or higher, or equivalent) to confirm that a specific body of knowledge is required to perform the job duties and that the beneficiary has attained that body of knowledge.

The agency should of course refer to “degrees” or “positions” where necessary to correctly restate the statutory standard, but in an effort to modernize the regulatory text, the agency should explain USCIS’s longstanding practices by excluding references to specific degrees (such asbusiness administration) and adding references to courses of study and job duties.

Most STEM jobs today cite responsibilities involving computer programming, data handling, complex modeling, statistical analysis, experimental design, project management, and technical writing/communication. All of these skills are gained through an advanced physics degree, in addition to topical expertise. As just one example, many jobs in critical and emerging technology require familiarity with a programming language, a skill all physicists must learn to carry out their research. Jobs also frequently call for the use of machine learning or AI—techniques that physicists were early adopters of, using them to process vast streams of data from some of the most complex experiments in the world.

To obtain their degree, a physics PhD graduate will have successfully demonstrated that they have learned technical tools, can design an experiment, manage their research program from inception to completion, and successfully communicate the results to the scientific community broadly. However, this is only apparent when considering the full body of work that goes into obtaining a physics PhD and not simply the degree title. The need to examine the whole arc of training and how it fits with the intended role is clear.


APS has concluded that the Department’s proposed regulatory text on specialty occupation definition and criteria for specialty occupation positions creates substantial uncertainty and suggests support for a significant departure from prior agency practice. We believe the above-described revisions would help USCIS clearly communicate H‑1B adjudications standards consistent with the statute as well as long-standing agency practice. Thank you for considering the views of the American Physical Society in finalizing the rule.


Robert Rosner

PresidentAmerican Physical Society


More information

  1. ga@aps.org
    1. EO 14410 (October 30, 2023) on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.

    2. Id. at section 5.1(d)((ii), and section 3(h), which cites the Critical and Emerging Technologies List Update (February 2022), National Science and Technology Council.

    3. 88 Fed. Reg. 72870 at 72876, October 23, 2023. Examining the actual transcript documenting the courses
      completed aligns with the reality that when U.S. universities and colleges report awarded degrees to the National Center for Education Statistics at the Department of Education there are a variety of institutional reasons why the Classification of Instructional Program code (CIP code) for the degree label does not always directly reflect all aspects of the completed course of study. For example, degrees might be reported as Business Administration even though a duly designated major in Management Science was completed or reported as Urban Planning even though a major in Sustainability Studies was fulfilled.

    4. 88 Fed. Reg. 72870 at 72874, October 23, 2023.

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