How to Address H-1B RFEs Questioning the Beneficiary’s Educational Qualifications?

One of the common RFE issues raised by USCIS in connection with H-1B petitions is the suitability of the beneficiary’s educational (and experience) qualifications.  There are two aspects to this RFE issue — whether the degree itself is a US-equivalent degree and also whether the field of study is in line with the specialty occupation position requirements.

Background of the Educational Qualifications RFE

The relevant H-1B regulations state that a specialty occupation position must require the “attainment of a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation in the United States.”      Once USCIS is comfortable that a position meets the requirements for specialty occupation (see our alert on this topic),  they look to see whether the beneficiary has the required bachelor’s (or higher) degree and whether the field of study of the beneficiary matches the specialty occupation fields.

Over the past years USCIS (through practice, policy and/or regulation) have tightened the specialty occupation requirements so that the petitioner must establish that a bachelor’s degree (or higher) is required in a specific field.   As a result, we have seen increase in the frequency of RFEs questioning the beneficiary’s educational credentials.

US Bachelor’s Degree or Equivalent

One of the ways USCIS can challenge the beneficiary’s education is by questioning whether the candidate has a US degree equivalent degree.   As a reminder, a US bachelor’s degree is deemed to require four years of study.   This issue is most common for candidates who have foreign degrees and most commonly for candidates with three-year bachelor’s degrees – for example, from UK, India, Australia, and others.

If the candidate has a 3-year bachelor’s degree (and no other degrees) then it will be necessary to rely on the “three-for-one” rule.   For purposes of determination of equivalency to a bachelor’s degree, USCIS would accept three years of specialized training and/or work experience for each missing year of college level.   As a result, a candidate who had a 3-year bachelor’s degree will need to document at least 3 years of specialized training or experience in a field related to the position in order to have an argument for a US bachelor’s degree equivalent.  If the position requires a master’s degree, USCIS must have a bachelor’s degree followed by at least five years of experience in the specialty.

Documentation of Prior Work Experience

In order to make an equivalency argument under the 3-for-1 rule, USCIS expects to see extensive documentation of progressive training and/or work experience and that it is related to the H-1B position.   Evidence is normally in the form of experience documents by one or more former or current employer(s) establishing the nature of the progressive experience, explaining how the experience was gained while working with peers who have a degree in the field, how the experience included progressively responsible work.

Specific Language in Experience Documentation is Critical

Because USCIS expects very specific language and aspects of the prior work experience to be included, we recommend any prior experience letters to be drafted very carefully.  Given the high stakes and importance of these letters, our office normally supplies templates and specific guidance when getting these prior experience letters.

Expert Opinion and Evaluations to Establish Equivalency

With a good set of prior experience documentation it is often necessary to obtain and include an expert opinion establishing the US equivalency.   USCIS requires the “expert” to meet certain requirements and when it comes to issuing educational equivalency opinions the expert must be a professor or official at a US university authorized to grant credit in the relevant field of study.   Our office normally arranges for this kind of an opinion as part of our normal H-1B petition work.

Field of Study – Mismatch Between the Position’s Required Field of Study and the Beneficiary’s Education Field of Study

Another way USCIS can question the education portion of a petition is a mismatch between the specialty position’s field of study requirements and the beneficiary’s education.

Example:  the Software Developer position is described to require a bachelor’s degree in Information Technology, Computer Science or a closely related field.    The Beneficiary has a four-year degree in Chemical Engineering (from the US or abroad) plus 8 years of progressive experience as software engineer.

Ideally, this kind of mismatch should have been identified and documented in the initial H-1B petition filing; but if USCIS issues an RFE questioning the field of study mismatch, it may be necessary to combine education with prior experience in a field related to the position’s duties.     As noted above, USCIS allows using three years of prior relevant experience in lieu of one year of education; this approach may also be used to “replace” the field of study by combining non-related education (3 or 4 years) with 3 to 6 (or more) years of work experience which is related to the position.

Example:  in the scenario above, the 8 years of progressive experience plus the bachelor’s degree in Chemical Engineering can be combined for an education plus experience equivalency to a U.S. bachelor’s degree in Computer Science or similar.

Expert Opinion and Evaluations to Establish Equivalency

With a good set of prior experience documentation, it is possible to obtain and include an expert opinion establishing the US equivalency in a field of study that matches the position requirements.   Our office arranges for this kind of an expert opinion as part of our normal H-1B petition work.

Attorney Assistance with Preparing RFE Response

Our office has focused on H-1B petitions for many years and, having handled hundreds of such RFEs, we feel that we have been able to understand the facts and documents USCIS adjudicators expect  to see in order to issue an approval.    Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFEs.    If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.
Conclusion

The educational credentials part of an H-1B petition is an aspect that should ideally be addressed and documented in the initial H-1B petition filing because the strongest H-1B petition is one which makes a good match between the specialty occupation nature of the position and the requirement for a specific field of study for the successful performance of the position and the beneficiary’s possession of a degree in this field of study.

We caution employers to not forget to weigh the candidate’s education (and experience) early in the process to ensure a strong case.    Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including educational credentials RFEs.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topic.