Degree Used for H1B May Not Be Sufficient for EB2 or EB315 Nov 2021
One generally must possess a U.S. college degree or its equivalent in order to qualify for an H1B position. Similarly, a U.S. college degree or its foreign equivalent is typically the minimum level of education that can be required for an employment-based, second preference (EB2) position or an employment-based, third preference (EB3) professional position. Yet, just because a foreign national’s degree is sufficient in the H1B context, does not mean the same degree will be considered the equivalent of a U.S. degree when it comes to applying for an EB2 or EB3 professional position.
H1Bs and Educational Equivalency
The H1B category is appropriate for specialty occupation positions. A specialty occupation is defined as a position that requires the theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) in order to enter the occupation.
In the United States education system, most people who obtain a bachelor’s degree complete at least 12 years of primary and secondary education, followed by a 4-year college degree. This type of education system is often referred to as a “12-plus-4” system. So, a person who has a 4-year U.S. degree, or obtained a degree in a country with the same type of system, would typically qualify for an H1B position, as long as the degree is in a field related to the H1B job.
That being said, because the law allows qualification for an H1B position through the equivalent of a U.S. bachelor’s degree, there is some flexibility in situations where the beneficiary does not have a qualifying 4-year college degree. For EB2 and certain EB3 cases, however, those same degrees may not suffice. This is a common reason why some cases cannot be filed under EB2. Where such issues are overlooked during case preparation, it is also a common reason for I-140 immigrant petition denials. If not identified at the outset, it is typically only after the I-140 is filed that the problem related to the beneficiary’s education comes to light. If the discrepancy between the education requirement listed on the labor certification and the beneficiary’s actual education cannot be overcome, the entire labor certification effort may well have been a waste of time and money.
Education Equivalency Allowed for H1B Petitions
An H1B petition can be approved for a candidate possessing credentials deemed equivalent to a U.S. bachelor’s degree in the given field or in a related field. The most straightforward situation is where the individual has earned a foreign degree that is regarded as equivalent to a U.S. bachelor’s degree (or above) from an accredited educational institution. If s/he does not possess a foreign bachelor’s degree, it is possible to show the equivalence of a U.S. degree through a combination of education and experience, or even just through experience alone.
The general rule in the H1B context is that three years of relevant experience is equivalent to one year of education. For example, to meet the minimum of a bachelor’s or equivalent education, a person could qualify for the H1B position based on 12 years of relevant, progressive work experience or through a combination of a related three-year bachelor’s degree and three years of relevant work experience. Typically, proof of such equivalency requires an appropriate credentials evaluation. There are strict standards for such credentials evaluations for demonstrating the eligibility to substitute experience for education.
Education Equivalency Not Permitted for EB2 or EB3 Professional Labor Certifications
An employment-based case can be filed in the EB2 advanced degree category for a position that requires at least a U.S. master’s degree (or foreign equivalent degree) or a bachelor’s degree (or foreign equivalent degree) and five years of progressive (post-baccalaureate) experience. For an EB3 case for a professional worker, the position must require at least the completion of a U.S. bachelor’s degree (or foreign equivalent degree).
In the EB2 or EB3 professional categories, it is necessary to establish one has completed the qualifying U.S. or foreign degree at the time of filing. Unlike the H1B category, the education requirement for an EB2 or EB3 professional position cannot be substituted by showing a number of years of work experience, or even a combination of education and experience. It is necessary to actually have a qualifying degree, whether U.S. or its foreign equivalent education. If the beneficiary does not have a qualifying degree, the case cannot proceed in EB2 or EB3, professional. It would likely need to be categorized under EB3, skilled worker.
For one who have a bachelor’s degree obtained in a country that does not follow the U.S. 12-plus-4 system, it is quite possible that the degree will be enough for H1B status, but inadequate for an EB2 or EB3 professional position. Identifying this potential problem early in the immigration process can help the foreign national to set realistic expectations and avoid filing a case that is destined to ultimately be denied. It can also provide the opportunity to discuss other possible immigration options with an attorney, such as potentially filing an EB3 skilled worker case, which does not have the same degree restrictions. Those with questions about education equivalency in an immigration context are encouraged to schedule a consultation with a Murthy Law Firm attorney.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, we at the Murthy Law Firm refer our clients to articles, like this one, which remains relevant.
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