One of the requirements for an H-1B visa is that the job for which an employee is being sponsored must be a “specialty occupation.” According to federal regulations, to qualify as a specialty occupation, the position must meet one of the following criteria:
- A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
- 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;
- The employer normally requires a degree or its equivalent for the position; or
- The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
Each of the above listed criteria states that a baccalaureate, or Bachelor’s, degree is required to qualify for an H-1B visa. Fortunately, there are ways to qualify without a qualifying degree. This can occur if the employee has the “equivalent” of a U.S. Bachelor’s degree through a combination of university study and experience or through experience alone. Federal regulations state that one way foreign national employees can qualify to perform services in a specialty occupation, is if they:
- Have 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 have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
As a general rule, USCIS will equate every 3 years of specialized work experience or training as equivalent to 1 year of college-level education.
Completion of less than a 4-year program: An employee can use experience to supplement his or her education in order to have an equivalent of a U.S. bachelor’s degree. For example, an employee that has a 3 year foreign Bachelor’s degree can also use 3 years of full-time progressive work experience in place of the missing 1 year of university-level education, and obtain an educational equivalency of a U.S. Bachelor’s degree.
No university education or incomplete university education: If the employee did not complete any higher education or only has some higher education, he/she can still qualify for an H-1B if he/she has the requisite amount of progressive work experience in the specialty. For example, if the employee has 2 years of college education, he/she will need 6 years of specialized, progressive work experience to potentially qualify for a 4-year degree equivalency. Likewise, an employee that has no college education at all can qualify if he/she has 12 years of specialized, progressive work experience.
Obtaining an educational equivalency: It is not enough to simply state that you worked in a relevant position for the required time. The employee will need to obtain an equivalency evaluation from an expert who can attest to the foreign national’s work experience or training as being equivalent to the relevant degree. To do so, the employee should first obtain letters from previous employers detailing the specialized, progressive experience and covering the entire period of time necessary to make up the difference in missing education. Furthermore, the regulations outline strict requirements for the type of educational evaluation that will be accepted. It is under USCIS’s discretion whether it will accept the equivalency.
If you have any questions regarding the H-1B process or if you qualify for an H-1B visa, please contact our office to speak with one of our qualified attorneys.