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The H-1B Series: Part 3 of 6 (Encore)

by George N. Lester IV

George N. Lester IV The H-1B Beneficiary's Required Qualifications

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.

Importance of the Baccalaureate Degree Subject Matter

Having determined that the foreign national candidate has a U.S. or foreign equivalent bachelor's degree, the petitioner must focus on the importance of the degree's subject matter and its relation to the specialty occupation.

Under one formulation in the regulations, the foreign national's U.S. or foreign equivalent bachelor's degree must be "in the specialty occupation." Under another more flexible formulation appearing elsewhere in the regulations the foreign national must hold "a" baccalaureate or higher degree "required by" the specialty occupation, which suggests a less literal approach whereby the degree may be in any subject area that is considered a usual requirement or qualification for entering the profession, rather than one where the degree subject precisely matches the job title.

In practice, H-1B adjudicators at INS apply a standard of whether the subject matter of a foreign national's degree is "directly related" to the position's duties. Thus, for a software engineer or programmer/analyst position, the foreign national will meet the qualification with a degree in computer science because that subject is clearly "directly related." Conversely, if the foreign national's degree is in history or English, he or she will not meet such an H-1B requirement based on an academic degree because those subjects are not related to the position at all. A large number of cases will fall into a middle ground where the foreign national's degree is not precisely "in" the subject area of the job, but the petitioner is willing to hire the person because it considers the degree to be sufficiently related. In these cases the petitioner should explain in its supporting documentation how the degree is directly related to the job and, where appropriate, supplement the documentation with other evidence of the foreign national's qualifications in the specialty occupation such as letters verifying professional experience in the occupation or certificates/transcripts showing specialized training. These types of evidence are described in more detail in the next subsection.

Often a foreign national being offered a position as a software engineer or programmer/analyst has an engineering degree in a subject other than computers such as electrical engineering, mechanical engineering, or civil engineering, or in another noncomputer but technical academic subject such as mathematics, chemistry, or physics. Or a foreign national with a liberal arts degree in a subject such as economics or history is offered a business, marketing, administrative, or writing position.

In these situations INS has indicated that it does not apply a concrete set of rules regarding what degree subjects are considered directly related to what general specialty occupational categories. Rather, it applies a case-by-case analysis to each petition, which gives the petitioner the opportunity to provide individualized arguments but necessarily involves some amount of subjective judgment by the examiner.

Officials at the Vermont service center described the approach as using a "target" with a series of concentric rings. Using the programmer/analyst example, the "bullseye" would contain the precisely related subject of computer science. The first ring would contain subjects that the examiners find are not precisely "in" the specialty occupation but which are, in their opinion, sufficiently related so that with a good general explanation from the petitioner there would generally be no further question. Electrical engineering, electronics engineering, and mathematics were placed in this category.

In the next ring were subjects which begin to raise questions as to whether they are "directly related" to the job, but where the petitioner could overcome objections with more particularized, concrete explanations of how the degree is related to the particular job duties and/or additional evidence of work experience or special training in the occupation. Civil engineering, mechanical engineering, chemistry, physics, and similar subjects were placed in this ring. The "outer" rings in this example contained progressively more "unrelated" degree subjects such as nontechnical liberal arts degrees, etc., whereby the petitioner would have a harder time overcoming a presumption that a degree is not a proper qualification. This type of analysis can be quite fluid; every case is considered on its own merits.

Frequently, the INS analysis of whether a degree field is sufficiently related to the subject of the job is based on comments in the Occupational Outlook Handbook (OOH) [discussed in a previous article] as to what degree subjects are normally accepted by employers as qualifying for the occupation.

When the INS examiner becomes concerned that a foreign national's degree is not sufficiently related to the specialty occupation to serve as an adequate qualification, the petitioner will be sent a Request for Evidence seeking extensive additional documentation of the foreign national's credentials. The Request may also raise a related issue, suggesting that, if in fact the foreign national is unqualified for the specialty occupation because of the "unrelated" degree and a lack of ether experience or training but is being offered the job anyway, the petitioner must have overstated the job duties which are not professional. In such a situation, the Request will ask the petitioner for evidence of the type described in previous articles on the topic of what is a specialty occupation, concerning the number of other workers in the position, their degrees, the employer's prior hiring practices, etc. That type of Request for Evidence is difficult, because it is questioning the petition both ways - on whether the job is a specialty occupation and on whether the beneficiary is qualified. Care must be taken to respond thoroughly to both points.

For these reasons it is good strategic advice for the petitioner to spot potential "unrelated degree" problems and address them in advance, even if it means extra effort for the initial filing. For example, in recent years the INS has quite commonly issued Requests for Evidence that question the relevance of the academic qualifications regarding petitions for programmer/analysts with degrees in mechanical or civil engineering. In India, for example, those degrees are quite common, and persons with those degrees often proceed from the university directly to work in computer programming. Often they obtain additional training in computer science from technical schools.

There are three approaches when the petitioner's initial assessment suggests a potential "unrelated degree" problem. In the first, the petitioner prepares arguments based on the foreign national's academic achievements, work experience, and training in detail to highlight details in the beneficiary's background that directly relate to the job. In the example of the software engineer with a mechanical engineering degree, the INS may dispute whether the academic major is "directly related" to software engineering. Perhaps upon review of the foreign national's transcript, the petitioner can point to a specific record of course work in computer science or programming that the foreign national completed as part of the degree, or a special project or thesis that involved, say, designing a computer-aided mechanical engineering software application. The foreign national may have also worked as a research assistant in a computer lab or performed other on-campus computer engineering outside the classroom. The petitioner can then argue that, notwithstanding the degree title, the overall academic program undertaken by the foreign national involved a combination of computer science and mechanical engineering sufficient to be "directly related" to the software engineering position offered. This argument should be backed up by proper evidence, including official copies of the academic transcript, copies of any thesis or special project, and reference letters from an advisor or computer science professor. The company letter should contain detailed descriptions about what specific software tools and programming languages were used.

The more attenuated the foreign national's academic background is, the more the petitioner should also have the foreign national submit reference letters verifying professional experience in the field, or other professional training evidence. The INS has indicated that where a foreign national has a degree in a scientific or engineering subject, it will consider the degree at least partially related to a computer position and accept the degree with evidence of an additional two to three years or more of professional experience or training in the field. It would treat the case as one involving combined education and experience, but apply the standards for that type of case in a flexible manner.

To avoid receiving an INS Request for Evidence, in any situation where the foreign national's degree appears to raise "unrelated degree" questions the foreign national should be instructed to gather employment reference letters. Based on recent INS actions, this would be particularly advisable, for example, in situations where foreign nationals with mechanical or civil engineering degrees are seeking computer-related positions.

The second approach is more focused on the nature of the job itself, and calls for preparing a more detailed job description showing that the position involves a combination of duties which "cross over" to the area of the foreign national's credentials. It is appropriate to use this approach where the job title generally implies work in one field, but the actual job duties require expertise in another. For example, a programmer/analyst may be assigned on a consulting basis to develop software for medical devices. The "unique-needs" nature of the assignment may require someone familiar with medical terminology or anatomy. Thus a degree in biology, for example, although clearly not related to computer programming, would nevertheless provide the foreign national with the requisite expertise to develop software for medical devices. Or suppose a management consulting company must advise a client on effective means of controlling pollution. A degree in environmental science would be useful, but would not be considered the appropriate educational background for a typical management consultant.

In a more common form of such an argument, a software engineer may be assigned to develop advanced mechanical engineering CAD/CAM software for use by design and mechanical engineers. A mechanical engineering degree should be accepted by INS as a normal, directly related qualification. Similarly, a computer programmer may be assigned to perform programming in electronics engineering applications for embedded software used to control advanced electronics devices. An electronics engineering degree will be a normal, directly related qualification. The petitioner must highlight those aspects of the job duties to which the foreign national's background most directly relates.

In addition to matching the foreign national's qualifications with the specific job duties, it may be helpful to refer to any other employees with similar degrees in similar positions. If the employer is involved in a niche market that requires specific expertise such as a software development company that-creates software to manage manufacturing devices, this would be helpful in demonstrating why that specific expertise would qualify the foreign national for the position even though the person is lacking what might be a more traditional degree for the general job category. The petitioner should instead focus on the job description and explain how the job involves special duties which, notwithstanding a generic title in one occupation such as software engineer or programmer/analyst, actually involves combined subject areas for which the foreign national's background is particularly relevant.

Finally, in some cases the best argument will not be enough. The foreign national may have a bachelor's degree but in a subject so unrelated to the job that the petitioner makes a judgment that an alternative strategy is needed. In such a case, the petitioner must determine how much of the foreign national's education is at least partially related to the job and then establish qualification based on combined experience and education using formulas and strategies that will be described in the next article.

Combining Education with Experience and Training to Meet the Required Qualification

A. Degree Equivalence: The Regulatory Scheme

From time to time a petitioner may wish to sponsor a foreign national for H-1B classification who does not hold a U.S. bachelor's degree or foreign equivalent, or holds such a degree but not in a subject related to the specialty occupation position. The H-1B program allows for a flexible approach in such a situation. A foreign national not holding a bachelor's degree may qualify for the specialty occupation by having a combination of "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 ... recognition of expertise in the specialty through progressively responsible positions directly related to the specialty."

Some common scenarios where this issue arises include the following:

  • The foreign national earned one of the three-year bachelor's degrees common in countries such as India or South Africa and then began work in the profession.
  • The foreign national has completed a foreign two-year diploma, certificate, or similarly titled program or a U.S. associate's degree, and then began work in the profession.
  • The foreign national completed some university courses but did not complete a degree program for personal reasons and then began work in the profession.
  • The foreign national has no formal education, but does have a long record of progressive experience in the specialty area which makes him or her attractive to the employer.
  • The foreign national has a bachelor's degree, but in an area sufficiently unrelated to the position so that it will not, standing alone, serve as an appropriate qualification.
INS regulations expand on the "education, specialized training, and/or progressively responsible experience" provision quoted above with the following seemingly convoluted criteria:
"[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:

"(1) An evaluation from an official who has authority to grant college-level credit for training and/or experience in the specialty at an accredited college or university which has a program for granting such credit based on an individual's training and/or work experience;

"(2) The results of recognized college-level equivalency examinations or special credit programs, such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI);

"(3) An evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials;

"(4) Evidence of certification or registration from a nationally recognized professional association or society for the specialty that is known to grant certification or registration to persons in the occupational specialty who have achieved a certain level of competence in the specialty;

"(5) A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the [foreign national] has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a -baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the [foreign national] lacks. For equivalence to an advanced (or Masters) degree, the [foreign national] must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the [foreign national] must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the [foreign national]'s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; 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; and that the [foreign national] has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

"(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

"(ii) Membership in a recognized foreign or U.S. association or society in the specialty occupation;

"(iii) Published material by or about the foreign national in professional publications, trade journals, books, or major newspapers;

"(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

"(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation."
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:

  • Identify the writer's position at the employer, and state how he or she knew the foreign national or became personally familiar with the foreign national's work;
  • Verify the exact dates of the employment, at least by month and year, and state whether it was full-time;
  • Provide an in-depth description of the foreign national's job duties, covering:
    1. specific projects the foreign national completed,
    2. how the position specifically involved "theoretical and practical application of specialized knowledge," such as by identifying, in a computer programming job, the particular software languages, tools, or operating systems used,
    3. the level of independent responsibility and decision-making authority,
    4. the nature of any supervisory duties, with a description of the level of employees supervised,
    5. the average qualifications and background of the foreign national's peers and supervisors, to show that they have professional qualifications, and
    6. changes over time in the foreign national's duties, to show progressively more responsible duties.
This level of detail is necessary not only to show that the foreign national has the requisite number of years of experience, but that the experience was of a progressive nature within the specialty occupation. For example, the typical form of employment reference letter coming from an employer's human resources department which simply verifies that an foreign national was "employed as a Programmer/Analyst with X corporation from 1993 through 1996" may not be sufficient. There should be a detailed letter from a person knowledgeable about the foreign national's work in addition to or in place of such a letter.

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:

  • Results of college-level equivalency examinations (e.g., CLEF, PONSI).
  • Certification or registration from a nationally recognized professional association or society in the profession that is known to grant such certification or recognition. The issuing organization should have an accrediting body or standards for issuing its certifications.
  • Membership in a recognized foreign or U.S. professional association or society in the specialty occupation.
  • Published material by or about the foreign national in professional publications, trade journals, books, or major newspapers.
  • Licensure or registration to practice the specialty occupation in a foreign country.
  • Achievements that a "recognized authority" has determined to constitute significant contributions to the field of the specialty occupation.

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:

  1. Obtain an evaluation from an official with authority to grant college-level credit for training and/or experience in the specialty from an accredited college or university;
  2. Obtain evaluations offering recognition of expertise in the specialty occupation from at least two "recognized authorities" in the specialty occupation; or
  3. Simply submit the evidence to INS with argument from the petitioner and ask the INS to make its own determination that the foreign national meets the degree equivalency standards.

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:

  1. Establish the reviewer's qualifications;
  2. Describe the academic institution and department or program with which he or she is affiliated;
  3. Describe the department or program's arrangement for granting academic credit for outside professional work experience or training, and state that the writer is authorized to evaluate candidates and grant such credit;
  4. Mention the documents or other evidence reviewed (e.g., academic documents, education evaluations, experience letters, training certificates, etc.; some reviewers will also require a personal interview with the foreign national);
  5. Summarize the foreign national's education and experience and how it relates to the specialty occupation; and
  6. Conclude that the foreign national has achieved a level of knowledge, competence, and practice in the specialty occupation that is equal to that of an individual with a baccalaureate or higher degree in the specialty, with a strong description of the basis for this conclusion.

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:

"(1) The writer's qualifications as an expert;

"(2) The writer's experience giving such opinions, citing specific instances where past opinions have been accepted as authoritative and by whom;

"(3) How the conclusions were reached; and

"(4) The basis for the conclusions supported by copies or citations of any research material used."
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.

Special Requirements: Licensed Professionals and Physicians

A. Licensure

The regulations provide that holding a state license, registration, or certification authorizing a foreign national to practice a specialty occupation is another acceptable circumstance for H-1B qualification. This should be viewed as an evidentiary accommodation, however, not a waiver of the requirement for a four-year university degree. The job must still be in a qualifying specialty occupation that normally requires a baccalaureate degree for entry. If the foreign national holds a professional license but no college degree, the petitioner must still meet the degree equivalency standards. In such a situation, however, the license will be highly probative evidence. Thus, petitioners are always best advised to submit both the license and regular academic credential documentation or experience letters. Holding a U.S. state license in an occupation that is widely accepted as professional, however, such as civil engineering, would lessen or obviate the need to obtain an independent foreign credential evaluation report or expert evaluation of the foreign national's experience.

Indeed, the regulations provide that, if licensing is normally a requirement for the profession, the foreign national must have such a license prior to approval of the petition in addition to the requisite academic credentials. The H-1B petitioner should therefore always determine before filing whether a particular profession is one that normally requires a state license, such as law, public school teaching, or civil engineering. If so, evidence of the foreign national's licensure must be submitted to the INS.

If the foreign national does not have the requisite license, the petitioner must explain why a license is not required for its particular position. For example, in public school systems licensure is normally required for a teaching position, but often the requirement can be waived where a teaching candidate has special skills, such as foreign language proficiency, for which the system has an immediate need. Or in law firms it is common to hire foreign lawyers who lack a U.S. license to serve in legal positions entitled "foreign lawyer," "foreign law consultant," "law clerk," or something similar, which maintains the specialty occupation nature of the job but eliminates the requirement for a state license to practice law inherent in a regular attorney position.

B. The Licensing "Catch-22"

Frequently, a position offered to an H-1B beneficiary may require a license issued by the state where the job is located in order to work in the position. Veterinarian or public school Teacher are examples. However, the H-1B beneficiary, while otherwise qualified in academic or experience background, may not be able to get the license from the state because he or she is outside the country and cannot apply unless in the U.S. with legal authorization to work and a social security number. The person cannot enter the U.S. legal to work and obtain a social security number, though, without H-1B petition approval. But, the H-1B petition cannot be approved if the person does not qualify by holding the license.

What do you do in this conundrum?

There are two strategies. First, look closely at the employer's actual requirements and at regulations for practicing the occupation, to see if the license requirement can be waived, or if the person can begin work in the occupation on a provisional basis, perhaps under special supervision of person holding license, until the license is obtained. In the case of a public school teacher, for example, as described above a local school system often has the discretion to waive the license requirement for teachers with certain special skills. In this case, a statement or letter showing official evidence of the waiver should be included in the petition.

In another example, depending on a particular state's rules a Veterinarian with all the right academic or experience needed to qualify for a license may be able to practice provisionally under the direct supervision of a licensed Veterinarian for a limited period of time while applying for the license. Similarly, an attorney who has sat for the bar exam and awaits the results, or who may be licensed in a different state from where the job is located, may qualify to be hired by a law firm in an attorney position while the state's license is pending. Thus, in these situations, the license is not required to actually start in the job, even though it may ultimately be a required to stay in the job after some initial period. The petitioner should include detailed evidence, such as a statement from the licensing authority in the state, explaining these special circumstances. The petitioner should also be prepared for INS to approve the initial petition only for the provisional period, with a requirement that an extension be filed after the license is issued.

Where it is simply not possible to establish a waiver of the license requirement or the "provisional employment" circumstance, INS recently recognized the "Catch-22" nature of the problem and created a special allowance. In November 2001, a memorandum was issued spelling out a policy for H-1B petitions in professions where a state license is required but not held. Provided that the "only obstacle to obtaining state licensure is the fact that the alien cannot obtain a social security card from the SSA" or the "alien's lack of physical presence" in the U.S., then the petition can be approved for a one year period, at the end of which an extension petition will have to be filed showing that the license has been obtained. The petition should include evidence that "all other regulatory and statutory requirements for the occupation have been met," and evidence from the state licensing board that the only obstacle to issuance of the license is the lack of a social security card or physical presence.

C. Physicians

The H-1B regulations provide special criteria and documentary requirements applicable to petitions for foreign national physicians. These rules create additional, more stringent requirements for physician positions that involve direct patient care. Hospitals and medical practice groups are regular users of the H-1B program and must be aware of the rules, which are summarized as follows:

If the physician is coming to the U.S. primarily to teach or conduct research, with no patient care to be performed except that which is incidental to the teaching or research, then the petition simply must include evidence that the beneficiary has graduated from a U.S. or foreign medical school or has a full and unrestricted license to practice medicine in a foreign state. In such circumstances the evidentiary requirements are similar to the requirements for proving professional qualification in any other H-1B job category.

For a direct patient care position, however, the rules provide that, in addition to these criteria:

  • The foreign national must have a license or other authorization to practice medicine from the state where the position is located, or be exempt from such a requirement;
  • The foreign national must have passed the Federal Licensing Examination or an equivalent examination designated by the Secretary of Health and Human Services, or be a graduate of a U.S. medical school; and
  • The foreign national must have passed the English language proficiency test given by the Educational Commission for Foreign Medical Graduates (ECFMG), or be a graduate of a school of medicine accredited by a body or bodies approved for that purpose by the Secretary of Education.
  • However, a foreign national physician graduate of a foreign medical school who is "of national or international renown in the field of medicine" may be exempted from the Federal Licensing Examination and ECFMG requirements.
The regulations do not explain how to prove "national or international renown" for purposes of the exception in the last section. Based on a general interpretation of that term, petitioners would be advised to submit materials in any or all of the following categories of evidence:
  • reference letters from other medical professionals of national or international renown, stating that the foreign national has national or international renown for his or her abilities as a doctor or other contributions to the medical profession;
  • awards, particularly if they are national or international in scope, such as from the World Health Organization;
  • articles or presentations published by the foreign national in medical journals or presented at medical conferences;
  • media publicity or journal articles describing or making reference to the foreign national or his or her work;
  • evidence of the foreign national's working in prominent positions for renowned academic or medical institutions;
  • evidence of the foreign national's serving as a speaker or panelist at medical conferences;
  • evidence of the foreign national's acting as a peer reviewer of the work of others presented at conferences or published in journals; and
  • any other evidence of special contributions or abilities in the medical field.
This concludes discussion of the Beneficiary's required qualifications. The next several articles in this series will focus on the Labor Condition Application.

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 a series of articles by George N. Lester IV 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. This article is a consolidated reprint of Articles 9-12 which originally appeared in each Monday's issue beginning in the September 16, 2002 issue of Immigration Daily.

For the latest updates from the Foley Hoag Immigration Practice Group, 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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