H-1B Series: The H-1B Beneficiary's Required Qualifications, Part 3
Combining Education with Experience and Training to Meet the Required Qualification
"[E]quivalence to completion of a United States baccalaureate or higher degree shall mean achievement of a level of knowledge, competence, and practice in the specialty occupation that has been determined to be equal to that of an individual who has a baccalaureate or higher degree in the specialty and shall be determined by one or more of the following:B. Degree Equivalency "3 for 1 Rule" and Other Evidence
The first step when faced with an H-1B candidate who does not have the proper degree is to determine exactly how much academic experience the foreign national does have so that the balance of "missing" education can be calculated. The petitioner should get official course transcripts from the foreign national, and any diploma, certificate, or other award of any academic credentials. If the credentials come from a foreign country, they should be submitted for a foreign credentials evaluation report. That report will then specify the number of equivalent U.S. university-level years of education attained by the foreign national. In the case of three-year Indian B.S. degrees, for example, the report will state that the person has completed the equivalent of three years of study towards a bachelor's degree at an accredited institution in the U.S.
The evaluation report will inform the petitioner of the number of credits or years of study toward a regular four-year degree that the beneficiary lacks, and permits the petitioner to assess whether the beneficiary's remaining training and professional experience will "make up" for the missing education under the INS rules and, in combination with the completed education, qualify the person for the H-1B specialty occupation.
In practice, the regulatory scheme quoted above uses an approach known as the "3 for 1 rule." In this analysis, three years of "specialized training and/or work experience" may be used to compensate for each one year of college-level training the foreign national lacks. Relevant work experience must be professional experience in the specialty area. Among other requirements, it must be demonstrated that the training and/or work experience "included the theoretical and practical application of specialized knowledge required by the specialty occupation," and that "the foreign national's experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation." Specialized training includes nonacademic classroom education related to the specialty occupation such as a program of technical coursework in computer software or business training commonly available from commercial providers or in a university extension program.
Thus, under this approach the holder of an Indian three-year B.S. degree, for example, may be able to qualify for H-1B classification with three years of progressive, postgraduate, professional experience or specialized training in the field. A candidate with two years of college-level education will need six years of such education or training, and so on.
With this formula, it is even possible to obtain H-1B classification for persons who have no college education. Realistically, though, a person with that background would need more than the minimum twelve years of experience or training than the "3 for 1 rule" would seem to dictate because of the difficulty of establishing that experience gained immediately out of secondary school was qualifying professional experience. Instead, a thorough assessment of the foreign national's career must be performed to determine when his or her work experience first rose to the level of specialized professional experience in the specialty field. The twelve years needed to equate to a four-year degree would then be counted from that time. In this scenario, any specialized professional or technical training that the foreign national might have received in a classroom setting, even if technically nonacademic, will be particularly relevant to indicate when his or her career path became sufficiently specialized.
The foreign national must obtain specific, primary-level documentation verifying all relevant work experience or specialized training. For work experience, the documentation must include detailed letters from prior employers. These letters should accomplish the following, at a minimum:
Similarly, it is not sufficient merely to submit the foreign national's resume to verify the professional nature or dates of prior employment. A resume might contain a helpful chronological summary of the foreign national's employment history, but because it is prepared by the foreign national the INS will treat it at best as a self-serving form of secondary evidence. Instead, primary evidence in the form of detailed, independent employment reference letters is necessary.
Documentation to verify specialized training should consist of transcripts of technical training programs covering the dates of the training program, how many hours were involved, and what certificates if any were awarded at completion. If that form of documentation is not available, then letters verifying the training similar to employment verification letters should be obtained.
Finally, the regulations allow other types of evidence to be submitted as part of the effort to establish degree equivalency, including:
The petitioner should gather whatever documentation is available in these areas.
C. Independent Evaluation; Presenting the Evidence
Once the petitioner has gathered sufficient primary evidence to support an argument of degree equivalency under the INS standards, it has three choices for presentation of the case:
The first option, an evaluation from a college or university official with authority to grant academic credit for the training/experience, represents by far the most persuasive manner to complete preparation of the case. It is the first and most prominent category of evidence recognized by the INS, and by its nature it will be the most credible form of opinion that a candidate's work experience is equivalent to completing the normal academic requirements necessary for a bachelor's degree at an accredited college or university.
In this context the "college or university official" will normally be a professor in the relevant specialty occupation subject who has the authority to review candidates for admission to the college or university and grant departmental academic credit for prior work experience. Many education evaluation services and immigration practitioners have arrangements with professors in various subject areas to provide these evaluations. The reviewing professor should be provided with all the evidence described above of the foreign national's pre-existing academic credentials, including the evaluation report, and the foreign national's work experience and specialized training. An appropriate evaluation must then:
In writing the evaluation the professor need not offer a grant of academic credit from the institution, although the professor must be authorized to grant such credit upon proper application for admission to the school. It is common for these evaluations to contain a disclaimer stating that they do not constitute a guarantee from the institution of admission to the professor's academic department or program or actual grant of credit.
Most professors who prepare such evaluations will follow the INS "3 for 1" guideline and require three years of documented, progressive professional experience for each year of education equivalency. The regulations do not require that they must follow that rule, however. On a case-by-case basis it might be possible to obtain a professor's evaluation of bachelor's degree equivalency satisfactory to INS without a full "3 for 1" record of experience, depending on other accomplishments of the foreign national.
In the second approach, the petitioner obtains statements from two "recognized authorities" in the specialty occupation offering "recognition of expertise in the specialty occupation" for the foreign national. The regulations provide a special definition for "recognized authority" and standards for the recognized authority's opinion:
"Recognized authority means a person or an organization with expertise in a particular field, special skills or knowledge in that field, and the expertise to render the type of opinion requested. Such an opinion must state:Although this definition provides some guidance, the credibility of a "recognized authority" is largely an issue of INS discretion. Appropriate evidence of an evaluator's credentials would include a resume and publication list, published material by or about the evaluator, and professional and academic honors. The "recognized authority" may be a college professor, official of a trade association in a field, or a highly accomplished individual in the profession.
Commercial credentials evaluation services and immigration attorneys frequently have regular arrangements with experts to prepare these types of opinions. The petitioner may also be able to identify a good source through industry contacts. In substance, the opinion should follow the format provided in the "recognized authority" definition above, and include detailed descriptions of the documents or other evidence reviewed along with the foreign national's education and experience related to the specialty occupation. It should expressly go through the "3 for 1" analysis and conclude that the foreign national deserves recognition for a level of expertise in the field normally associated with attainment of a bachelor's degree.
In this manner, a "recognized authority" evaluation can be quite similar to the "college or university official" evaluation. The differences between the two are simply that (1) a "recognized authority" opinion will be easier to get than a "college or university official" evaluation because the qualified pool of college or university officials with authority to grant academic credit for work experience or training in a particular field is smaller than the number of academic, industry, association, or other experts who may qualify as "recognized authorities," but (2) the petitioner needs a "recognized authority" opinion from "at least two" such individuals to meet the regulatory requirements, rather than only one.
The regulations do provide for a different, heightened form of "recognized authority" opinion where only one statement will be required, when such opinion can offer a determination that the foreign national has "achievements [that are] significant contributions to the field of the specialty occupation."
Finally, under its regulations the INS retains the discretion to make a determination of the foreign national's degree equivalency on its own. Accordingly, the petitioner may simply submit the case to the INS with the primary evidence it has collected, make appropriate arguments based on the "3 for 1 rule," and offer any other evidence of the foreign national's expertise, accomplishments, or recognition, and then ask the INS to make a favorable determination using its own discretion. As a practical matter, this approach should be followed only in strong cases where, for example, the foreign national has one of the three-year bachelor's degrees described above that is commonly accepted as a professional. qualification in the home country and then a strong record of well over five years of progressively responsible professional experience, and is now being offered a high-level position clearly representing further advancement.
In such strong cases, the INS has historically exhibited flexibility regarding the evidentiary requirements and has a record of approving cases without expert opinion. If this strategy works, it saves the petitioner the time and expense associated with expert opinions. If it does not, the petitioner faces greater time and expense later responding to a Request for Evidence. A decision to go forward without expert opinions should be based on a comprehensive assessment of the case made in consultation with a qualified immigration law practitioner.
Note in this regard that several foreign credentials evaluation firms offer a service in which one opinion is prepared by their regular academic credential evaluator that combines a discussion of the foreign national's academic credentials with a discussion of his or her work experience, and then applies the "3 for 1 rule" to conclude that the person has sufficient combined education and experience to constitute bachelor's degree equivalency. Petitioners should be wary of using these "opinions" because the firms' education evaluators are not qualified to offer them under INS criteria, being neither college nor university officials with authority to grant credit for experience, nor "recognized authorities" in any field other than evaluating foreign education credentials. If the position is that of a computer programmer/analyst, for example, the "recognized authority" opinion must come from a qualified expert in the field of computer science. The INS has expressly stated that evaluations of work experience made by foreign education credential services are not acceptable.
Evaluation firms will cite examples where INS has approved cases submitted with these statements, and the statements may be seen as useful secondary summaries of the petitioner's argument for recognition of a foreign national's degree equivalency when the petitioner intentionally chooses the "no expert" approach. However, the petitioner could just as easily include such argument in its own supporting letter, where it is likely to be more credible. When petitioners have relied on this form of statement, believing it to be primary evidence of a foreign national's degree equivalency, the INS has often asked for more evidence or denied the petition.
About The Author
George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.
This article is the eleventh in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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