Most prospective H-1B employees and H-1B employers begin with either of the following two questions: “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 our previous article[i], it is mandatory that both the proffered position and prospective employee should qualify for the H-1B visa. To build on previous article, this article will explore the importance of educational and/or experience equivalency evaluations, and explain certain precautions that an employer and/or a prospective H-1B employee can take in order to avoid a potential Request for Evidence (RFE) and/or denial of 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”. A specialty occupation is an occupation that requires: (1) a theoretical and practical application of a body of highly specialized knowledge; and (2) 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 could qualify the individual for an H-1B visa.

Why An Academic or Educational Evaluation Is Required?

Employers should be mindful that if the prospective H-1B nonimmigrant beneficiary is educated outside the U.S., the employer will be required 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 “on its face” that it is a “bachelor’s degree” does not necessarily mean that it is equivalent to a United States bachelor’s degree. For example, India (and other countries throughout the world) has 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 (and other countries throughout the world) may usually be considered equivalent to a U.S. bachelor’s degree.

It is 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 a “specialized field”. However, in these kinds of situations, when a beneficiary’s degree 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” holding a degree in Business Administration.

Generally, a degree in Business Administration may not satisfy the requirement that the prospective H-1B Beneficiary has a degree in a specialty occupation because of the general, non-specific nature of the coursework required for th