Reconciling Work Experience in H-1Bs and EB-3s
Experience Requirements for the H-1B Petition
Winning an H-1B approval for one who may not have a US degree or foreign equivalent, but many years of experience, is an accomplishment. Under the INS rule in 8 CFR §214.2(h) (4)(iii)(D)(5), one of the ways to establish whether work experience is equivalent to university education is through a formula counting three years of experience as one year of college. A bachelor’s degree is awarded in the US after 4 years of college. Thus an individual with no college would have to establish 12 years of progressive experience to establish a US degree. Establishing that a person has the equivalent of a US bachelor’s degree is a prerequisite for H-1B visa eligibility.
Soon after the H-1B petition is approved, the foreign national employee almost always wishes to proceed towards the green card. It is logical to formulate the job requirement in the labor certification application, which is the first step, in the same way as the H-1B – i.e. the job requires a bachelor’s degree through the “3 to 1” year formula. Although the Department of Labor (DOL) exercises lots of scrutiny over an application, it does not generally review whether the foreign national employee meets the bachelor’s degree requirement or not. This requirement has to be established, following a labor certification grant, when the employer files the EB-3 petition (Form I-140) with one of the four INS Service Centers. The INS Service Center more often than not would object through a Notice of Action, stating that the beneficiary must have the actual degree or its foreign equivalent. An equivalency based on a combination of education and experience is not acceptable.
The employer and employee, and the attorney representing them, are truly stumped. There is no way to establish that the client has the actual degree or foreign equivalent, without relying on the individual’s work experience. The ethical attorney attempted to be consistent with respect to the job requirements under the H-1B visa and EB-3. If the position on the labor certification did not require a bachelor’s degree; and instead, sought only two or more years of experience, the case would have been approved.
The EB-3 preference, pursuant to INA §203(b)(3), comprises three categories: members of the professions with baccalaureate degrees, skilled workers and unskilled workers. The skilled worker category includes jobs that require at least two years of training or experience. Those in the unskilled category can require less than two years of experience.
For purposes of the EB-3 preference, the INS has defined a “professional” as “a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.” See 8 CFR §204.5(l)(2). The term “member of professions” has been defined elsewhere as: “one of the occupations listed in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation” .
Experience Requirements for the EB-3 Petition
The INS has rejected as contrary to the statute that experience can be substituted for a degree for the EB-3 professional category. The reason for this is that there also exists a skilled worker category within the same preference, specifically requiring two or more years of experience. Since both these categories are subject to the same numerical allocation, it should not matter, according to the INS, whether the foreign employee qualifies under one category or the other. It would matter, however, to a careful employer, and the ethical attorney, to ensure that the position in both the H-1B and EB-3 petitions require a bachelor’s degree or equivalent. As great pains were taken to establish the degree requirement for the position in the H-1B petition, it would be totally inconsistent if the degree requirement was eliminated for the job in the labor certification filed shortly after.
The INS Service Centers have denied many EB-3 petitions because the foreign national employee was unable to demonstrate a baccalaureate degree or foreign equivalent. These denials have not been limited to petitions involving work experience equivalencies, but also to instances where the beneficiary possessed a series of degrees or diplomas or educational programs culminating into the equivalent of a US degree. Thus, this writer knows of a petition that was denied for a job requiring a bachelor’s degree in computer science where the beneficiary possessed a three-year degree in an unrelated field and two additional years of university level education in a computer diploma program. There appears to be no clear rationale for ruling out the demonstration of US equivalent degrees based on a series of educational programs in a foreign country. In one case, the Administrative Appeals Office (AAO—previously called the Administrative Appeals Unit or AAU) approved a petition for an assistant restaurant manager, finding that the beneficiary’s three-year bachelor of arts degree combined with a master of arts degree in social work were the equivalent of a US baccalaureate degree .
Dealing with a “Bachelor’s Degree or Equivalent” Formulation
One way to reconcile the inconsistency is to require the job to have a baccalaureate degree “or equivalent” on the labor certification. However, if the employer plans to rely on the “or equivalent” formula, he or she should define what is meant by equivalent experience. For instance, in one case, the petitioner, a computer consulting firm, sought to employ the beneficiary as a senior analyst/programmer. The Form ETA-750 indicated that the position required a bachelor’s degree in computer science, computer communication systems, or related field, or equivalent experience. The director denied the petition because he determined that the petitioner had not established that the beneficiary had the equivalent of a U.S. baccalaureate degree in the enumerated fields. On appeal, counsel for petitioner submitted documentation to establish that the beneficiary had a combination of education and experience to meet the requirements set forth in ETA-750 prior to the filing date. The AAO dismissed the appeal, finding that the petitioner had not specified what was meant by “equivalent experience,” and that the actual minimum requirements could have been clarified or changed before the ETA-750 was certified by the DOL .
Many practitioners define “or equivalent” according to the H-1B formulation—3 years of experience is equal to one year of education. However, relying on this formulation and substituting twelve years of experience for a US bachelor’s degree may often be rejected by the DOL as being too restrictive as well as exceeding the educational and training requirements for the position . Even if there is a way to justify this, DOL objects to the usage of “or equivalent” as the advertisement is targeted toward US workers and not foreign workers. If the bachelor “or equivalent” degree requirement can be included and defined in the labor certification application, an INS Service Center may be more amenable to approving the EB-3 petition. For example, in a petition for an “information engineering consultant,” the petitioner, a provider of computer-related professional services, specifically stated in the ETA-750, that it would consider candidates without a B.S. degree in computer science that possess ten years of work experience. The AAO granted the petition, because the requirements on the labor certification included an alternative requirement of experience, which the beneficiary demonstrated . It should be noted, however, that the ten years of experience relied upon as an alternative to a US degree falls short by two years under the “3 to 1” formula.
In the event that the INS continues to insist that the employee possess a straight foreign degree equivalent, without the work experience component, it can nevertheless be argued that he or she could qualify as an EB-3 skilled worker instead of a professional. For instance, in one case, the INS center director had denied the visa preference petition on grounds that the petitioner had not established that the proffered position required the services of a “member of the professions.” On appeal, although the AAU found that the director correctly determined that a baccalaureate degree is not the minimum requirement for entry into the position, it held that the center director should have considered the petition under the “skilled worker” classification . If the petition is ultimately approved, the consistency in the job requirements between the H-1B and permanent residency applications is maintained.
If it is not possible to insert the “or equivalency” requirement in the labor certification, the practitioner should be prepared to delete the bachelor’s degree requirement if it should become problematic at the EB-3 stage. While this will obviously create an inconsistency, both the employer and attorney can justify it on the ground that they were left with no option due to inconsistent educational standards for different petitions, namely, the H-1B and the EB-3. There is no correct answer to this problem, unless the INS can harmonize its standards between the H-1B and EB-3, and the DOL is also receptive to the INS “3 to 1” work experience formulation to establish a US bachelor’s degree.
 See 8 CFR §204.5(k)(2). INA § 101(a)(32) provides: “The term “profession” shall include but no be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or universities.”
 See INS commentary, 56 Fed. Reg. 60, 897, 60,900.
 See Matter of [name not provided], EAC-94-027-51899 (AAU Oct. 19, 1994) (ESC). The ETA-750 required a bachelor’s degree with no major field of study specified and two years of experience in the job being offered or two years of experience in a related occupation, specifically demonstrating supervisory or managerial experience. The director determined that the beneficiary’s education and work experience did not relate to the proffered position.
 See Matter of [name not provided], WAC-98-240-51749 (AAU Dec. 8, 2000) (CSC).
 This is so because to justify the requirement of a bachelor’s degree or equivalent, an occupation generally must have a Specific Vocational Preparation (SVP) of 7 or 8. An SVP of 8 signifies training of up to ten years, and requiring 12 years of experience (based on the “3 to 1” formula) would exceed it.
 See Matter of [name not provided], EAC-94-103-50831 (Sept. 23, 1994) (ESC).
 See Matter of [name not provided], A29 612 819 (AAU Jan. 15, 1993) (WSC) (LOS).
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or email@example.com.