H-1B status is reserved for aliens working in a specialty occupation, which is defined in 8 CFR 214.2(h)(4)(ii) as an occupation which requires theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelors degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation.

By Tabitha O'Connell

H-1B status is reserved for aliens working in a specialty occupation, which is defined in 8 CFR §214.2(h)(4)(ii) as “an occupation which requires theoretical and practical application of a body of highly specialized knowledge […] 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”.

Since H-1B-eligible positions must require a bachelor's degree, a potential H-1B worker must hold a bachelor's degree (in a specialty related to the occupation). The degree can either be from an accredited U.S. institution, or be a foreign degree found equivalent to a U.S. bachelor's. Another possibility is to use a combination of the alien's education and their experience to show that they have the equivalent of a bachelor's degree.

There are several different ways to prove that a foreign degree or foreign education plus experience is equivalent to a U.S. bachelor's. The simplest one is obtaining an education evaluation, which must be done by “a reliable credentials evaluation service which specializes in evaluating foreign educational credentials” (8 CFR 214.2(h)(4)(iii)(D)(3)). These evaluations are generally quick and straightforward to obtain, as there are many different companies that provide them and the result is often a simple one-to-one equivalency—a foreign four-year bachelor's degree being equated to a U.S. bachelor's in a similar field. This type of evaluation is sufficient where the foreign national's degree, standing alone, is equivalent to a 4-year U.S. bachelor's degree which is directly related to the job.

However, if the alien only holds a two- or three-year degree, or has not completed a degree program at all, a combination education plus experience evaluation will be necessary. These are more time-consuming and expensive to obtain, as there are more specific requirements for this type of evaluation. The evaluation must be done by “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” (8 CFR § 214.2(h)(4)(iii)(D)(1)). This means that an evaluation from a credentials evaluation company will not be sufficient if experience is to be evaluated along with education; the evaluation must, rather, come from a college professor. In addition, the professor must currently be employed at an institution which has a program for granting college credit based on work experience.

In addition, for these evaluations the alien's experience itself must meet certain requirements: the alien must “have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty” (8 CFR §214.2(h)(4)(iii)(C)(4)). Proving this requires submitting letters of experience from the alien's current or former employers that explain in detail each position the alien has held at the company and the ways in which each subsequent position is more complex than the last.

A final option (often a last resort if an evaluation is not possible) is to allow USCIS to make the determination as to whether the alien's education and experience are equivalent to a U.S. bachelor's degree. In this case, you must show that the alien has three years of specialized training or work experience (related to the occupation in which they will work) for each year of higher education they do not have. You must prove that the training/experience “included the theoretical and practical application of specialized knowledge required by the specialty occupation” and “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” (8 CFR 214.2(h)(4)(iii)(D)(5)). Recognition of expertise also remains a requirement, and in this case it may be shown through recognition by two authorities in the field, membership in a relevant association/society, “[p]ublished material by or about the alien in professional publications”, the alien being licensed/registered in the occupation, or the alien having made significant contributions to the field.