by Thejaswini Mohan, Managing Attorney

With the H-1B quota being right around the corner, now is a good time to review the latest trends with respect to education eligibility requirements for an H-1B filing. This will help to better prepare for the upcoming H-1B cap season. In 2022, we saw the majority of the RFEs directed towards “Beneficiary’s Qualifications for H1B”, so it’s definitely worth taking a closer look. Specifically, we bring to your notice the latest RFE trend from USCIS which is against what the regulations require.

Let’s quickly look at the criteria that one must meet in order to qualify to perform services in a specialty occupation:

• Hold a U.S. bachelor’s or higher degree from an accredited college or university
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree from an accredited college or university
• Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and
• Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. USCIS uses the 3:1 experience-to-education ratio. That is for every year of education that is missing you will need to show three years of experience.

If you hold a foreign 4-year bachelor’s degree it is straightforward to get a foreign education evaluation. If you hold only a 3-year foreign bachelor’s degree, then you will have to procure an education plus an experience evaluation where you will have to provide at least 3 years of work experience related to the H-1B position. As a side note, the experience letters must be detailed and include job duties and perhaps give statements about the work being progressive, to make it strong. This helps to support the education eligibility requirements.

What ILBSG Recently Sees in Practice

If you hold a degree that is irrelevant to your H-1B position, such as – for example, you hold a foreign bachelor’s degree in “Electronics Engineering” but the H-1B position is “Software Developer” then you simply have to procure an education plus experience evaluation. Recently we have seen USCIS not accepting the education and experience evaluation and requiring a whopping 12 years of relevant experience to qualify in this scenario. Specifically, USCIS inaccurately claims that if the beneficiary’s degree is “unrelated” to the equivalency, then 12+ years of work experience in the field needs to be demonstrated. In fact, the beneficiary’s degree in Electronics Engineering is not “unrelated” and definitely included many relevant IT-related courses and technical subject matter which is absolutely relevant to the equivalency.

It is critical to note that while twelve years of work experience can potentially be equated to four years of study and therefore equating to a Bachelor’s Degree, a full twelve years of experience in the field of the “equivalent major” would NOT be required to establish a Bachelor’s degree equivalency. The rationale behind this is that a US Bachelor’s Degree is not comprised of four solid years of study in only one field of the major. If we look at the Computer Science Programs and Software Engineering programs we will see that the degree requirements include not only significant course work in the major field and related areas, but also more than half of course and credit requirements are targeted towards other general topics that provide a well-rounded education and are not necessarily directed to the specific “degree major”. Therefore, for purposes of an evaluation, it is to be noted that a beneficiary’s education in another field can be used to substitute for the general and elective topics required in a four-year Bachelor’s Degree while the 3 plus years of full-time work experience can substitute for the “major topics” and requirements.

Scenarios Overview

• If you don’t have a 4 years bachelor’s degree = 12 years of relevant experience is required (3:1 experience to education ratio)
• If you have 3 years of bachelor’s degree =  3 years of relevant experience is required for the missing 1 year of study
• If you have a 4 years bachelor’s degree that is not directly related to the H1B position = 3 plus years of relevant experience is required (The Professor who will be evaluating your academic and work experience will show related courses and credits to establish equivalency to the proffered position).

Therefore, USCIS’s requirement of 12 years of experience especially when your work experience is being combined with equivalent academic studies is inaccurate – just as a four-year US Bachelor’s Degree program is not comprised of exclusively four years of course work only in the major field of study. Be aware of this requirement while applying for an education plus experience evaluation this quota season. Using an experienced immigration attorney is a great way to ensure you don’t get a denial on such RFEs. At ILBSG, we are here to help so please contact us today.