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H-1B Series: The H-1B Beneficiary's Required Qualifications, Part 1
by George N. Lester IV

George N. Lester IV The Legal Standard

Not only is it fundamental to an H-1B petition that the position offered be in a specialty occupation, it is equally important that the beneficiary be "qualified to perform services in the specialty occupation because he or she has attained a baccalaureate or higher degree or its equivalent in the specialty occupation."

For a beneficiary who has the required bachelor's degree in the relevant specialty, qualifying for H-1B status is usually straightforward. For others, the "or its equivalent" language provides a fair measure of flexibility in demonstrating appropriate professional qualifications. The professional requirements for a specialty occupation may be met through education, professional experience, or a combination of education and experience. INS regulations spell out the methods of qualifying in detail:

"(C) Beneficiary qualifications. To qualify to perform services in a specialty occupation, the foreign national must meet one of the following criteria:

"(1) Hold a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

"(2) Hold a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

"(3) Hold an unrestricted State license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

"(4) Have education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty."
The United States or Foreign Baccalaureate Degree

The most straightforward way to qualify for H-1B classification is by earning a standard four-year bachelor's degree or higher from an accredited U.S. college or university. The INS will generally not question the academic merits of a particular institution so long as the degree is issued by an accredited college or university.

The petitioner must submit certain documentary evidence to INS to prove that the U.S. bachelor's degree was awarded, usually copies of the diploma and academic transcript. It is particularly helpful to include the transcript for very recent graduates, to show that the beneficiary has taken the requisite courses in the specialty occupation field. If the diploma has not been issued yet but the person has completed the degree, then a copy of the transcript showing the degree awarded may be submitted in combination with a registrar's letter certifying that the person will receive a diploma at the next commencement.

Using a foreign baccalaureate or higher degree to qualify can also be straightforward, provided that the foreign degree is "determined to be equivalent to a United States baccalaureate or higher degree." The INS makes this determination in the course of adjudicating the petition. This generally requires submission of "[a]n evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials." In the report, a knowledgeable expert reviews the foreign credentials, and states the level of academic achievement in the U.S. with which the credentials equate.

There are many foreign education credential evaluation service firms in the U.S. Evaluation personnel at these services often are former professors or university officials whose academic responsibilities had included evaluating foreign educational credentials for determining admissibility to U.S. graduate degree programs. Evaluators base their reports on certain standard references in the field of international education that publish detailed descriptive information on university programs around the world. In addition to advising H-1B petitioners and immigration lawyers, these firms serve academic institutions, state licensing boards, employers, and government agencies needing evaluation of a candidate's foreign background.

In the 1980s the INS listed approved evaluators, but it has since stopped this practice and now expressly declines to endorse or recommend "reliable" credentials evaluators. Instead, it simply tells petitioners that "many private individuals, organizations and educational institutions provide this service." It does have a set of stated criteria for the education evaluation report, according to which the evaluation should:
"(i) Consider formal education only, not practice experience.

"(ii) State if the collegiate training was post-secondary education, i.e., did the applicant complete the U.S. equivalent of high school before entering college?

"(iii) Provide a detailed explanation of the material evaluated, rather than a simple conclusory statement.

"(iv) Briefly state the qualifications and experience of the evaluator providing the opinion."
The National Association of Credential Evaluation Services (NACES) is a professional association of foreign credential evaluators. NACES has established certain standards and qualifications for performance of evaluation services that member firms must meet.

Generally, the INS takes credential evaluations at face value. As the number of evaluation services has grown in recent years with increased demand for preparation of H-1B petitions, however, the INS might in the future establish more specific standards for credential evaluations and seek more information about the basis of a determination and the qualifications of the evaluator.

The actual requirements for documentation of a foreign degree are the same as for documenting a U.S. degree, but in practice the INS will be stricter in scrutinizing documentary evidence of credentials from certain countries. In all cases the petitioner should have the diploma, any related certificates, and a complete transcript. Copies are acceptable to submit to INS, but all the information, including any official stamps or seals, should be legible. Documents not in English must be accompanied by a certified translation.

The education evaluation report should identify the documents reviewed, summarize the education credentials they represent in the foreign system, compare those credentials with what is typically required for that level of education in the U.S. system, and offer an expert opinion as to the equivalent degree credentials and subject area in the U.S. If the subject area of the degree is not precisely the same as the "specialty occupation" in which the foreign national will work, but there is a minor concentration of course work in that area shown on the transcript, the evaluator should specifically include discussion and evaluation of that course work in the report.

There have been particular difficulties in recent years at INS and at U.S. consulates abroad regarding documentation of education credentials from certain institutions in India and countries of the former Soviet Union due to the submission of numerous fraudulent credentials in H-1B petitions from those countries. The difficulties may arise at several steps in the H-1B process. United States consulates in India, Russia, and Ukraine, for example, have commonly delayed or even refused issuance of H-1B visas to applicants for whom H-1B petitions were already approved at the INS in order to conduct independent investigations to check whether an applicant had a claimed degree by contacting the relevant institution. To expedite this process the U.S. consulate in Chennai, India, now uses lists of graduates it has obtained from various academic institutions in India to verify claimed degrees.

The INS has also delayed processing of individual H-1B petitions while it referred a request to the U.S. consulate in the beneficiary's home country to conduct an independent credentials verification. Alternatively, the INS may issue a Request for Evidence to the petitioner seeking a currently dated certified letter or affidavit from the university registrar confirming that the institution's official records show the person earned the degree he or she claims, and that the diploma and transcript offered are true and accurate. Finally, H-1B beneficiaries with Indian academic credentials who changed or extended status in the U.S. have been questioned about the authenticity of their credentials when applying for H-1B visas at U.S. consulates in Canada and Mexico, and in some cases were refused visas with instructions that they must reapply in their home country, where the credentials can be verified locally.

These problems have occurred in only a minority of cases. Still, it is prudent to have complete, certified official documentation for all foreign academic credentials, particularly credentials from India and former Soviet Union countries such as Russia and Ukraine, including a current registrar's certification if available. In addition, when an H-1B beneficiary visits a U.S. consulate he or she should always bring original academic documents, not copies, particularly when visiting a consulate in Canada or Mexico as a "third-country national."

To be deemed equivalent to a U.S. bachelor's degree, the INS requires a foreign degree to have the same underlying prerequisite requirement-completion of a secondary program equivalent to U.S. high school plus the equivalent of a full four-year college or university academic program. The INS assumes that U.S. bachelor's degrees are issued upon completion of a four-year program of 120 credits, or thirty credits per academic year, and this standard is applied for determining whether the foreign national has completed an equivalent of four years of full-time college study abroad. Expert evaluators are expected to apply these standards in reports submitted to the INS.

One problem in this area concerns foreign nationals who have certain degrees recognized as baccalaureate in their countries but which require only three years of full-time college study. This is common, depending on the subject area of the degree, in education systems of India, South Africa, parts of Canada, the United Kingdom, and certain eastern European countries, among other locations. For example, in India the degree entitled "bachelor of science," which is issued in traditional academic subjects such as math, physics, or chemistry, involves only three years of study. The degrees "bachelor of technology" and "bachelor of engineering," in contrast, which are issued in engineering and technical subjects such as computer science or electronics engineering, are full four-year programs. In Canada, the U.K., and South Africa, the "B. Tech" degree commonly involves just three years of study.

Strategies to deal with this situation vary. The Indian three-year degree is generally not recognized as equivalent to a U.S. bachelor's degree, so that additional qualification based on experience or further training is necessary. If the foreign national has obtained a graduate --academic degree in the Indian system such as a master of science or postgraduate diploma, an evaluator can issue a report based on the combined years of study which should be equivalent to at least a U.S. bachelor's degree. Otherwise, as discussed below, the foreign national must obtain at least three years of professional experience in the specialty area, verified by reference letters, to compensate for the missing year of education.

Depending on the individual circumstances, an evaluator may describe a three-year degree from the U.K., Canada or South Africa as a "functional" equivalent of a U.S. bachelor's degree. Such degrees typically involve the same level of course work in a major area of study as the U.S. degree, and lack only the equivalent of elective and distributive nonmajor courses in the U.S. system. The INS has rejected such degrees and the "functional equivalent" rating, however, in strict adherence to the four-year equivalency rule.

Still other three-year degrees have expressly been recognized by the INS as equivalent to a U.S. bachelor's degree, such as the British higher national certificate and the Canadian bachelor of technology. In Canada graduates commonly attended a thirteenth grade of high school, so that after completion of three years of university study they have the same total years of academic preparation as a U.S. student who attends twelve years of high school and four years of college.

The H-1B petition may be submitted without a foreign credential evaluation report if the petitioner argues in its supporting letter that, on their face, the foreign educational credentials are equivalent to U.S. academic credentials. The INS ultimately makes the determination of equivalency, and it is within the adjudicator's discretion to waive the evidentiary requirement of an evaluation report. Historically, the INS will accept certain high-level foreign degrees without an evaluation report, generally from well-recognized, prestigious institutions in Canada or Europe. In general this strategy is not recommended, though, because avoiding the modest expense of an evaluation report would not justify the risk of a several-week delay while the INS sends a Request for Evidence asking for an evaluation and the petitioner then obtains one.

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 ninth 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 or by calling 800-537-2128, ext. 9300.

For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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