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ABCs of H-1Bs (This Is Part Iv Of An Viii Part Series): The Whys And Hows Of Education And/Or Experience Evaluations In The Context Of H-1B Visa Preparation And Filing
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/393017-article-abcs-of-h-1bs-part-iv-the-whys-and-hows-of-education-and-or-experience-evaluations-in-the-context-of-h-1b-visa-preparation-and-filing-by-david-h-nachman-esq-michael-phulwani-esq-and-ludka-zimovcak-esq#bio”>
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David H. Nachman, Esq., Michael Phulwani, Esq. and Ludka Zimovcak, Esq.
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<p>
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:
<em>
“I would like to work in the U.S. using an H-1B visa, but am not sure
if I qualify”
</em>
or
<em>
“I want to hire a foreign worker but not sure if the individual
qualifies for an H-1B visa.”
</em>
</p>
<p>
<em></em>
</p>
<p>
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 <em>both </em>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.
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
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.
</p>
<p>
Generally, a degree in Business Administration may not satisfy the
requirement that the prospective H-1B Beneficiary have a degree in a
specialty occupation because of the general, non-specific nature of the
coursework required for this type of degree. The prospective H-1B
Beneficiary may have taken a significant number of accounting courses while
obtaining his/her degree in Business Administration. These accounting
courses may be presented as part of the legal argument that demonstrates
that the Business Degree in question may be sufficient to establish that
the alien has the required education in a “specialty” occupation for H- 1B
purposes.
</p>
<p>
Note that an evaluation of education by a credentials evaluation service,
which specializes in evaluating foreign education credential, is <em>“advisory” </em>only. The United States Citizenship and Immigration
Service (USCIS) does not endorse or recommend any particular educational or
experiential evaluator. It is important to note that some evaluators
specialize in “educational” equivalency evaluations. Some evaluation
services specialize in “experience” evaluations. In addition, there are
some organizations that are situated to perform a combined “educational and
experience evaluation”. When looking for an appropriate credentials
evaluation service provider, we recommend that you consider their
track-record.
</p>
<p>
When seeking guidance with regard to educational or experience equivalency
there are many services available that can assist the employer or the
prospective H-1B employee. It is very important for H-1B employers and
employees to know that equivalency evaluations must come from a reliable
credentials evaluation service which specializes in evaluating foreign
education and/or experiential credentials. If the equivalency evaluation is
not issued by a “reliable” credentials evaluation service, USCIS, in past,
has issued RFE questioning the reliability of the credentials evaluation.
</p>
<p>
To avoid such RFEs, it is important to make sure that the organization or
service that performs the pure “educational” equivalency evaluation should:
(1) Consider formal education only, not practical experience; (2) State if
the collegiate training was post-secondary education, (i.e., whether the
applicant completed the U.S. equivalent of high school before entering
college); (3) Provide a detailed explanation of the material evaluated
rather than a simple concluding statement; and (4) Provide qualifications
and experience of the evaluator providing the opinion.
</p>
<p>
Even if the prospective H-1B Beneficiary does not hold a bachelor’s degree
or its equivalent in a specific area of study required by the proffered
position, she or he may qualify for an H-1B visa. The prospective H-1B
Beneficiary’s education, specialized training, and/or progressively
responsible experience may be recognized as equivalent to a baccalaureate
degree (commonly referred as the “educational and experience evaluation”)
provided the H-1B Beneficiary posseses knowledge, competence, and practice
in the specialty occupation that has been determined to be the equivalence
to a baccalaureate or higher degree.
</p>
<p>
The educational and experience evaluation may be deemed to be equal to a
U.S. baccalaureate or higher degree through <em>one or more </em>of the
following factors: (A) 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; (B)
The results of recognized college-level equivalency examinations or special
credit programs, such as the College Level Examination Program (CLEP) or
Program on Non-collegiate Sponsored Instruction (PONSI); (C) An evaluation
of education by a reliable credentials evaluation service which specializes
in evaluating foreign education credentials; (D) 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; (E) A determination by the
USCIS that the equivalent of the degree required has been acquired through
a combination of education, specialized training and/or work experience and
that the Beneficiary has also achieved recognition of expertise in a
specialty occupation as a result of such training and experience.
</p>
<p>
With regard to the first option (evaluation from an official who has
authority to grant college- level credit) for proving educational and
experience evaluation equivalent to a U.S. baccalaureate or higher degree,
USCIS’s Adjudicator’s Field Manual (AFM) clarifies that an official must be
“formally involved with the college or university’s official program for
granting credit based on training and/or experience to have the required
authority and expertise to make such evaluations.”
</p>
<p>
When proving equivalency through “education and experience”, the
equivalency evaluator needs to be cognizant of the fact that: the
Beneficiary’s training and/or work experience includes “a theoretical and
practical application of specialized knowledge” required by the specialty;
and, the claimed experience was gained while working with peers,
supervisors, and/or subordinates who have a degree or equivalent in the
specialty.
</p>
<p>
The USCIS regulations set forth a rule-of-thumb equivalency protocol or
methodology called the “3-to-1 rule”. The 3-to-1 rule states that a
bachelor’s degree equivalency can be demonstrated through a combination of
education, specialized training, and/or work experience. Simply put, three
years of specialized training and/or progressively-responsible related work
experience can be used to demonstrate a year of college-level academic
training that the prospective H-1B Beneficiary may lack.
</p>
<p>
As to the last option (if USCIS itself makes the determination regarding
whether the Beneficiary holds an equivalent of the bachelor’s degree), the
Beneficiary needs to show recognition of expertise in the specialty
evidenced by at least one type of documentation such as:
</p>
<p>
(1) Recognition of expertise in the specialty occupation by at least two
recognized authorities in the same specialty occupation; (2) Membership in
a recognized foreign or U.S. association or society in the specialty
occupation; (3) Published material by or about the alien in professional
publications, trade journals, or major newspapers; (4) Licensure or
registration to practice the specialty occupation in a foreign country; or,
(5) Achievements which a recognized authority has determined to be
significant contributions to the field of the specialty occupation.
</p>
<p>
In conclusion, provided that the proffered job qualifies as a specialty
occupation, it is imperative to show that the prospective H-1B Beneficiary
holds either a U.S. baccalaureate or higher degree or its equivalent in the
specific field. The equivalency can be demonstrated through the use of an
educational evaluation or through a combined experience and educational
evaluation. In some cases, a pure experience equivalency evaluation may be
possible. If the employer submits an educational equivalency evaluation, it
should come from a reliable credentials evaluation service which
specializes in evaluating foreign education credentials. The baccalaureate
or higher degree equivalency through educational and experience evaluation
can be proved through one or more of the above-mentioned five (5) options.
Finally, there are additional requirements that the prospective H-1B
Beneficiary needs to satisfy if USCIS makes its own determination about
whether the H-1B candidate holds the equivalent of a U.S. bachelor’s degree
or higher educational degree required by the specialty occupation.
</p>
<p>
For more information about the H-1B nonimmigrant work visa process or to
consider H-1B nonimmigrant work visa options, the immigration and
nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ)
Law Group, P.C. invite you to visit them on the web at <a href=”http://www.visaserve.com/”>www.visaserve.com</a> or to email them
at <a href=”mailto:info@visaserve.com”>info@visaserve.com</a> or to call
the firm at 201.670.0006 (x107).
</p>
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<hr/><h4>
<a name=”bio”></a>
About The Author<br/>
</h4>
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<p>
<a><b>David Nachman, Esq. </b></a>is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assist clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.</p>
<p>
<a><b>Michael Phulwani, Esq. </b></a>is admitted to practice law in New York and India. He has been practicing law for about 40 years in the field of US Immigration and Nationality Laws. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and Consular Processing cases at American Consulates abroad and especially in India.</p>
<p>
<a><b>Ludka Zimovcak, Esq. </b></a>is a Managing Attorney at NPZ Law Group, PC. Mrs. Zimovcak’s passion for excellence in immigration law derives from her own family’s first-hand immigration experiences. She is fully licensed to practice as an Attorney in Slovakia and New York.</p>
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