The threshold question for an H-1B nonimmigrant work visa is whether the intending H-1B nonimmigrant has the equivalence of a U.S. Bachelor’s Degree in a specific field. Most of the prospective H-1B employees and H-1B employers begin with either of the following two thoughts: “I would like to work in the U.S. using an H-1B visa, but am not sure if I qualify” or “I want to hire a foreign worker but not sure if the individual qualifies for an H-1B visa.”
As briefly touched upon in Part I of this VIII Part H-1B series, it is mandatory that not only the prospective H-1B employee (“H-1B employee” or “Beneficiary”) but both the proffered position and prospective employee should be qualified to be able to obtain the H-1B nonimmigrant work visa. Building upon the previous articles, the following will explore the importance of educational and/or experience equivalency evaluations and explain precautions that an employer and/or prospective H-1B employee can take in order to avoid a dreaded Request-for-Evidence (RFE) and/or Notice of Intent To Deny (NOID) the H-1B nonimmigrant petition.
For a proffered H-1B position to qualify for an H-1B visa, it must be in a “Specialty Occupation”. As previously pointed out, a specialty occupation is one that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. Additionally, with regard to a prospective H-1B employee, regulations specify that the individual must possess either a United States baccalaureate (or its equivalent) or higher degree required by the specialty occupation from an accredited college or university OR hold an unrestricted state license, registration or certification which authorizes the prospective H-1B employee to fully practice the specialty occupation. Also, having 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 having recognition of expertise in the specialty through progressively responsible positions directly related to the specialty could qualify the individual for an H-1B visa.
Employers should be mindful that if the proposed H-1B nonimmigrant Beneficiary is educated outside the U.S., the employer will need to determine whether the foreign education is equivalent to a United States baccalaureate or higher degree.
It is extremely important to understand that just because the degree states that it is a bachelor’s degree it does not necessarily mean that it is automatically equivalent to a United States bachelor’s degree. For example, in India (and other countries throughout the world) there are both three and four-year bachelor’s degrees. Generally (but not always), the three-year degrees are equivalent to three years of undergraduate coursework at a U.S. institution of higher learning. Four-year degrees from India can generally be considered to be equivalent of a U.S. bachelor’s degree.
Also worth highlighting is that a general degree may not qualify an individual for an H-1B visa because of the absence of specialized experience as there must be a showing of a degree in “specialized field”. However, in these kinds of situations, when a Beneficiary’s bachelor’s degree (or its equivalence) is not directly related to the proffered position, it is important to evaluate the Beneficiary’s academic course work related to the occupation to determine his/her qualifications.
Consider, for example, the case of a prospective Beneficiary for an H-1B petition for the position of Accountant who holds a degree in Business Administration. Sometimes the degree may be even further unrelated to the position being taken by the proposed H-1B Beneficiary.
Generally, a degree in Business Administr