H1B Degree Equivalency

H1B Degree Equivalency

 

Introduction: H1B Degree Equivalency

The H1B visa category is a nonimmigrant visa for employing foreign professionals in specialty occupations. By definition, a specialty occupation position requires either the attainment of a baccalaureate degree or higher or the equivalent of such a degree through experience. In this article, we will examine degree equivalencies in the H1B context.

Statutes

The H1B visa category is authorized by section 101(a)(15)(H)(i) of the Immigration and Nationality Act (INA). Section 101(a)(15)(h)(i)(b) specifies that the H1B visa category is for an alien “who is coming temporarily to the United States to perform services … in a specialty occupation described in section 214(i)(1) [of the INA]…

Section 101(a)(15)(H)(i)(b1) authorizes H1B1 status for professionals in specialty occupations who are nationals of Chile or Singapore.

Section 214(i)(1) of the INA defines “specialty occupation” in section 101(a)(15)(H)(i)(b). This definition also applies to E3 status (restricted to nationals of Australia and authorized by section 101(a)(15)(E)(iii). Under section 214(i)(1), a “specialty occupation” means an occupation that requires-

A. theoretical and practical application of a body of highly specialized knowledge, and
B. 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.

“Specialty occupation” is defined identically for H1B1 status in section 214(i)(3).

Section 214(i)(2) sets the requirements for qualify for an H1B visa working in a “specialty occupation” as defined in section 214(i)(1)-

A. full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,
B. completion of the degree described in [section 214(i)(1)(B)] for the occupation, or
C. i). experience in the specialty equivalent to the completion of such degree, and ii). recognition of experience in the specialty through progressively responsible positions relating to the specialty.

It is important to note that while we will find the rules for H1B degree equivalency in the regulations, the concept is explicitly authorized in statute in sections 214(i)(1)(B) and 214(i)(2)(C) of the INA.

Regulations

The statutes authorizing the H1B visa program are implemented through Department of Homeland Security (DHS) regulations.

Labor Condition Application

Under 8 C.F.R. 214.2(h)(4)(B)(1), a petitioner must obtain certification from the Department of Labor (DOL) that it has filed a labor condition application in the occupational specialty in which the alien(s) will be employed. However, 8 C.F.R. 214.2(h)(4)(i)(B)(2) states that the labor condition application is not determinative of whether the occupation is a “specialty occupation.” Rather, the determination will be made by United States Citizenship and Immigration Services (USCIS) in accordance with section 214(i)(1) of the INA. The USCIS will also determine whether the alien for whom H1B status is sought qualifies to perform services in the specialty occupation.

Specialty Occupations

Under 8 C.F.R. 214.2(h)(4)(ii), a specialty occupation is defined as: “an occupation which requires theoretical and practical application of a body of specialized knowledge in fields of human endeavor … and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”

8 C.F.R. 214.2(h)(4)(iii)(A) sets forth that a “specialty occupation” must meet one of the following criteria:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

The requirements in 8 C.F.R. 214.2(h)(4)(iii)(A) refer to the position for which the H1B worker is sought. However, that the position qualifies as a “specialty” occupation does not guarantee that the H1B petition is ultimately approvable. The beneficiary of the H1B petition must meet the requirement for being a specialty occupation worker in the specific specialty occupation for which certification is sought.

Specialty Occupation Workers

8 C.F.R. 214.2(h)(4)(iii)(C) requires that in order to perform workers in a specialty occupation, the beneficiary of an H1B petition 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 the 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.

If the beneficiary meets any of the first three requirements, then he or she will not have to worry about the degree equivalency regulations that we will discuss in the next section.

Degree Equivalency Regulations

8 C.F.R. 214.2(h)(4)(iii)(C)(4) states that an H1B petition beneficiary may qualify as a specialty occupation worker by “[having] education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a United States baccalaureate degree or higher degree in the specialty occupation…” “Equivalence” is defined in 8 C.F.R. 214.2(h)(4)(iii)(D) as “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…” In order to qualify as a specialty occupation worker through degree equivalency, 8 C.F.R. 214.2(h)(4)(iii)(D) requires that one or more of the following criteria are met:

  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 alien 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 alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty. If required by a specialty, the alien must hold a Doctorate degree or its foreign equivalent. It must be clearly demonstrated that the alien's training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation; that the alien'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 alien 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 United States association or society in the specialty occupation;
    • (iii) Published material by or about the alien 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.

8 C.F.R. 214.2(h)(4)(iii)(D) lists the ways in which the “baccalaureate degree or higher” requirement may be met by an H1B petition beneficiary who does not have the requisite U.S. degree. This allows applicants in many cases to demonstrate the qualifications for classification as an H1B professional without having obtained the requisite degree for the position.

In the following sections, we will examine how to satisfy the different degree equivalency requirements in 8 C.F.R. 214.2(h)(4)(iii)(D).

1. Evaluation from Official Who Has Authority to Grant College-Level Credit for Training and/or Experience in the Specialty

In order to satisfy 8 C.F.R. 214.2(h)(4)(iii)(D)(1), the petition must include an evaluation from an official at a college who has the authority to grant credit for training and/or experience in the specialty. If the college grants the credits based the H1B petition beneficiary's training or experience in the specialty in question, these credits may qualify the beneficiary for H1B status if they would — taken together with the credits or time toward a degree that he or she already has — add up to the equivalent of the required degree.

2. The Results of College-Level Equivalency Examinations or Special Credit Programs

Certain college level equivalency examinations or special credit programs may be used to qualify for H1B status through degree equivalency. The regulations cite the CLEP and PONSI programs as examples. The examination or program must relate to the specialty occupation. Although this degree equivalency provision is limited, it can be very useful in the cases where it is applicable. A petitioner and beneficiary who seek to rely upon 8 C.F.R. 214.2(h)(4)(iii)(D)(2) should first consult with an experienced immigration attorney for an opinion on whether the equivalency examination or special credit program is likely to be applicable to the specialty occupation in question.

3. Evaluation of Foreign Educational Credentials

If the H1B petition beneficiary has foreign education credentials that may contribute to his or her meeting the degree requirement, an evaluation of the credentials performed by a credentials evaluation service that specializes in evaluating foreign education credentials.

It is important to note that under 8 C.F.R. 214.2(h)(4)(iii)(C)(2), a foreign degree that is considered the equivalent to a U.S. baccalaureate or advanced degree may suffice on its own for meeting the degree requirement if it is equivalent to a U.S. degree in the same field as the specialty occupation. However, see the Matter of Shah, 17 I&N Dec. 244 (BIA 1977) [PDF version], which held in the EB3 context that a 3-year baccalaureate degree from India is not the equivalent to a 4-year U.S. baccalaureate degree. If a foreign degree is being relied upon, it is always advised to consult with an experienced immigration attorney before filing the petition. If the foreign degree may not be considered the “equivalent” of a U.S. degree, credits obtained in the foreign degree program may still be able to contribute toward meeting the degree requirement through degree equivalency.

4. Evidence of Certification or Registration in a Nationally Recognized Organization for the Specialty Occupation

Evidence of certification or registration from a nationally-recognized professional organization or society for the occupational specialty may help an H1B beneficiary qualify for H1B status under H1B equivalency. However, the regulation in 8 C.F.R. 214.2(h)(4)(iii)(D)(4) makes clear that the organization or society must be known to grant certification to those “who have achieved a certain level of competence in the specialty.” Furthermore, the requirements for membership in such an organization or society must be sufficient to help the H1B beneficiary meet the requirements for H1B status in conjunction with his or her other credentials. An experienced immigration attorney will be able to assess this type of credential and determine its utility, or lack thereof, for satisfying degree equivalency under 8 C.F.R. 214.2(h)(4)(iii)(D)(4).

5. Degree Equivalency Through Combination of Education, Specialized Training, and/or Work Experience

8 C.F.R. 214.2(h)(4)(iii)(D)(5) is the most broadly applicable H1B degree equivalency regulation. Under the regulation, an alien may use a combination of to satisfy degree equivalency for H1B eligibility:

Education;
Specialized Training in the Specialty Occupation; and/or
Work Experience in the Specialty Occupation.

The regulation provides that “three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks.” Thus, if specialized training or work experience is being relied upon, it is essential to first determine how much “college-level training” is lacking (as compared to the degree requirement for the position) and then to compare to the amount of specialized training or work experience possessed by the H1B beneficiary. Where the petition relies on the beneficiary's combination of education and experience, the petitioner must take care to carefully document the beneficiary's educational history. Furthermore, it is important to note that the regulation requires that any experience be “progressively responsible.” That is, the evidence must show that the beneficiary gained responsibility with experience in the specialty occupation.

The Board of Immigration Appeals (BIA) held in the Matter of Sea, 19 I&N Dec. 817 (BIA 1988) [PDF version] that a combination of course work in a professional field combined with professional experience and achievement may be considered equivalent to a baccalaureate degree. See also: Matter of Yaakov, 13 I&N Dec. 203 (BIA 1969) [PDF version].

If the specialty occupation requires a master's degree, but the H1B beneficiary only possesses a baccalaureate degree, at least five years of experience in the specialty are required for degree equivalency.

However, it is important to note that the regulation sates of a doctorate degree is required, the H1B petition beneficiary must possess the requisite degree. There is no degree equivalent to a doctorate degree under the current regulations.

The regulations leave open the possibility that experience alone may be sufficient to establish degree equivalency. The Administrative Appeals Office (AAO) held in 1989 that 22 years' experience in the specialty occupation was the equivalent of a baccalaureate degree.1 Multiple district courts have held the same.2 Nevertheless, if the H1B beneficiary is relying solely on experience or training to be considered equivalent to a baccalaureate degree, his or her credentials will face high scrutiny. It is recommended in such cases that the H1B petition beneficiary have more than the minimum 12 years of experience.3

The regulation requires that the training or work experience have “included the theoretical and practical application of specialized knowledge required by the specialty occupation…” This means that it is not merely sufficient for the beneficiary to have generally trained or worked in the field. Rather, the petition must demonstrate that the beneficiary trained or worked in a capacity that required the theoretical and practical application of specialized knowledge. The beneficiary must have also must have trained or worked while working with or under persons with a degree or its equivalent in the specialty occupation. The beneficiary must have “recognition of expertise in the specialty occupation.”

The regulation lists five types of documentation that may support the beneficiary's “recognition of expertise in the specialty occupation.”

First, 8 C.F.R. 214.2(h)(4)(C)(iii)(D)(i) states that the petition may include a recognition of expertise in the specialty occupation submitted by two “recognized authorities” in the same specialty occupation. The term “recognized authority” is defined in 8 C.F.R. 214.2(h)(4)(C)(ii). A “recognized authority” may be a person or organization with expertise, special skills, or knowledge in the particular field. The opinion submitted by a recognized authority 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.

The regulations favor “recognized authorities” that have given previous opinions that have been accepted as authoritative. Accordingly, if the beneficiary is relying on expert opinions to substantiate that he or she has professional experience in the field, the beneficiary should seek opinions from experts who have experience in giving similar opinions.

Under 8 C.F.R. 214.2(h)(4)(C)(iii)(D)(v), a single recognized authority may suffice if he or she determines that the beneficiary made “significant contributions to the field of the specialty occupation.” However, “significant achievements” are not defined in the regulations. Therefore, it would be risky to rely solely on 8 C.F.R. 214.2(h)(4)(C)(iii)(D)(v) to demonstrate the professional nature of the beneficiary's experience.

8 C.F.R. 214.2(h)(4)(C)(iii)(D)(ii) states that membership in a recognized or foreign U.S. association or society in the specialty occupation may support the beneficiary's standing as a professional. A petitioner submitting evidence of the beneficiary's membership in such an association or society should submit the organization's or society's requirements for membership to demonstrate that its members are professionals in the specialty occupation.

8 C.F.R. 214.2(h)(4)(C)(iii)(D)(iii) allows for the petitioner to submit published material by or about the beneficiary to support his or her standing as a professional. The regulation states that such published material may be in “professional publications, trade journals, books, or major newspapers.” This evidence is best used in conjunction with other evidence in 8 C.F.R. 214.2(h)(4)(C)(iii)(D). If the petition includes published materials, it should include as many published materials as possible as well as evidence to support the professional standing of the publications.

Finally, 8 C.F.R. 214.2(h)(4)(C)(iii)(D)(iv) allows the petition to rely upon the beneficiary's licensure or registration to practice in the specialty occupation in a foreign country. If applicable, this may by itself suffice to demonstrate the professional status of the beneficiary.

Conclusion: H1B Degree Equivalency

In situations where the beneficiary of an H1B petition does not meet the degree requirement for the position, he or she will have to demonstrate degree equivalency through other means. Before filing an H1B petition, it is essential to consult with an experienced immigration attorney. An experienced immigration attorney will be able to evaluate the evidence and determine whether the beneficiary meets a degree requirement or will be required to rely on establishing degree equivalency. If the beneficiary will have to rely on degree equivalency, an experienced immigration attorney will assess whether the evidence exists to support the H1B petition given the requirements for the position and the beneficiary's background.

____________________

  1. Matter of Minnesota Mining and Mfg. Co. (3M), Case No. A27-228-517 (AAU Oct. 24, 1989)
  2. E.g., Turbomotive, Inc. v. Weiss, No. H-88-563-JAC (D.Conn. July 27, 1989), reported in 66 No. 30 Interpreter Releases 879 (Aug. 7, 1989); Hong Kong TV Video Program Inc. v. Ilchert, 685 F.Supp. 712 (N.D. Cal. 1988)
  3. Fragomen, Austin T., Careen Shannon, and Daniel Montalvo, “H-1B Handbook,” 43-50

Resources and Materials:

Fragomen, Austin T., Careen Shannon, and Daniel Montalvo. H-1B Handbook. 2015 ed.: Thompson Reuters, 2015. 43-50, Print. Immigration Law Library.

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 917-18, 921-22, Print. Treatises & Primers.

Tags: 
H1B Visa