Overcoming H-1B Challenges – Qualifying Through Work Experience and the Three-for-One Rule

This is the last article in our series relating to overcoming H-1B petition challenges, which we authored in anticipation of the H-1B season beginning on April 1, 2015.

The most common H work visa is the H-1B which is for “specialty occupations.” In simple terms, “specialty occupation” means an occupation which requires at least a bachelor’s degree or equivalent in a professional field.   As such, the employer must prove that the position qualifies for H-1B and, additionally, that the employee’s qualifications actually meet the requirements for the position.

As stated above, H-1B positions require at least a bachelor’s degree or equivalent in a professional field. If the employee being sponsored for the H-1B position does not possess an actual degree in a relevant field, he or she may qualify based on equivalent, progressively responsible work experience. Such experience may substitute for lacking college-level credits pursuant to a “three-for-one” rule that U.S. Citizenship and Immigration Services has deemed acceptable for purposes of H-1B petitions. Under this rule, an individual could substitute three years of progressively responsible work experience for one year of college-level education.  Therefore, an individual without any post-secondary education who possesses twelve years of progressively responsible experience in the appropriate specialty occupation will be deemed qualified under the H-1B “three-for-one” rule.

USCIS is very particular when requesting evidence relating to work experience equivalencies.  Employers may submit an evaluation from an official who has the 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. With the evaluation, the official must also include a letter from the dean or provost of the official’s affiliated educational institution, stating that the evaluating official has the authority to grant college-level credit for training and/or experience. The dean or provost must also state in the letter whether the affiliated educational institution has a program for granting credit based on an individual’s training and/or work experience.

USCIS will also require proof of the foreign national’s experience to accompany the evaluation. The foreign national’s statements and résumé alone are insufficient. Instead, USCIS will request experience verification letters from prior employers. Letters from previous employers must be on a company letterhead, and they must state the duties that the foreign national performed while employed and the length of the employment. The letters must not be generic but should include sufficient detail relating to the foreign national’s duties that make it clear that the work included the theoretical and practical application of specialized knowledge required by the specialty occupation. The letters should also demonstrate that the foreign national’s work experience was gained while working with peers, supervisors and subordinates who have degrees in the specialty occupation.

Further, USCIS will expect the employer and evaluator to demonstrate that the foreign national has recognition of expertise by presenting at least on type of the following:

  • Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;
  • Membership in a recognized foreign or United States association or society in the specialty occupation;
  • Published material by or about the alien in professional publications, trade journals, books, or major newspapers;
  • Licensure or registration to practice the specialty occupation in a foreign country; or
  • Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

With the H-1B season upon us, employers must act quickly to decide if they wish to sponsor any employees for H-1B, and, if so, to determine if such employees qualify for H-1B and to collect the required supporting evidence. Therefore, it is important to consult with an experienced immigration lawyer early in the process.

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