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How to find out whether you qualify as a
member of the professions for an H-1B visa

By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary

    Operating Instructions published by the Immigration and Naturalization Service are fairly clear about eligibility requirements for the H-1B visa.  If you do not have a qualifying baccalaureate degree, you may still qualify by proving to the INS that you have equivalent professional or specialized experience in combination with other training or education.  The INS instructions to examiners are set out below so that you may see whether you qualify.

OI 214.2(h)(3)(ii) states:

    "(A) Professional occupations.  A professional occupation requires attainment of a baccalaureate or higher degree or its equivalent in a specialized field of study as the minimum requirement for entry into the occupation in the United States.  When the petitioner is seeking H-I classification for an alien as a professional and the occupation is not recognizable by the examiner as a profession, the petitioner may be requested to provide evidence that the occupation is a profession.  The evidence should be evaluated under the regulation's criteria for determining whether  a position is a profession.  It is the responsibility of the petitioner can do so by showing one or more of the following.
    "(1) that the particular position is so unique, specialized, and/or complex that it can only be held by a member of the professions and requires abilities beyond industry standards.
    "(2) that the position has developed over time to the point where it now normally requires a degree for entry.
    "(3) that a degree has been required consistently for the position in its organization;
    "(4) that the employ's duties will involve significant supervision and quality review over the work of members of the professions, and credentials as a professional are required of the employee; or
    "(5) that the employee will exercise considerable autonomy in a specialized professional field.

    "(B) Documentation required for a member of the professions.  The Service will accord H-I classification to an alien as a professional if the petitioner provides evidence that he or she meets one of the following criteria:
    "(1) U.S. Baccalaureate or higher degree.  The petitioner may provide a certified copy of the alien's degree, transcript, or official confirmation of the issuance of a degree in the profession  from an accredited college or university in the United States.
    "(2) Foreign baccalaureate or higher degree.  Evidence that the foreign degree is equivalent to a U.S. degree in the profession may be required.  The petitioner may provide evidence, such as the alien's foreign degree, transcripts, an evaluation from reputable credentials evaluation services, or evidence that the alien has been accepted into a graduate-level program in an accredited U.S. college or university.
    "(3) State licensure.  The petitioner must provide a certified copy of the alien's valid state license, certification, or registration to practice the profession.  A permanent or temporary license, certification, or registration is acceptable (See special requirements for professional nurses).  When the alien has a temporary license, the approval period of the petition and/or extension of stay application cannot exceed the validity period of the temporary license.
    "(4) Education, training, and experience equivalent to training acquired by attainment of a degree.  This criterion requires an evaluation of the alien's education, training, and/or experience and a determination of equivalency by a recognized authority, or by the Service.  The regulations require the alien to do demonstrate that he or she has sufficient education, specialized training possessed by a person who has a degree in the profession,and to have attained professional standing.

    "(i) Determination of equivalency.
    "The regulations provide several options from which the petitioner and alien can select one or more ways to show that the alien has training equivalent to that acquired by obtaining a degree.  The regulations list four authoritative sources whose independent evaluations, if credible and reliable, will be accepted by the Service.  The Service will not specify the documentation or methods which the authoritative sources shall use in making their evaluation. Where an evaluation does not appear to be credible or reliable, the examiner should question the evaluation and explain the specific reasons in a transfer out or a notice of intent to deny.  The requirements which the Service will use to make determinations of equivalency should not be imposed on the evaluations of authoritative sources.

    "(ii) Equivalency by authoritative sources.
    "A person or organization which is listed as an authoritative source must supply the information required of a recognized authority as defined in Sec. 214.2(h)(3)(ii)(E).
    "(A) An evaluation by an official who has authority to grant college-level credit in the profession at an accredited college or university which training and/or work experience.  The service does not require the alien to be enrolled in a program for college credit at the university in order to accept the evaluation of such an expert.  The official must be formally involved with the college or university's official program for granting credit based on training and/or experience to have the required authority and expertise to make such evaluations.  The evaluation may be done in the official's name as an individual, or as an authorized representative of the college or university.
    "(B) Results of recognized college-level equivalency examinations or special credit programs,such as the College Level Examination Program (CLEP), or Program on Noncollegiate Sponsored Instruction (PONSI).  Results of such programs must be translated into college credits by an authoritative source in the particular program or by an authorized official from an accredited college or university, such as the registrar, in order for the results to be applied towards the degree requirement.
    "(C) Evaluation of education by a reliable credentials evaluation service which specializes in evaluating foreign educational credentials.  The Service will only accept evaluations of foreign academic education or vocational or technical training provided in a structured classroom setting from credentials evaluations services.  In no case will the Service accept their evaluation of work experience, including apprenticeships and/or practical training.
    "(D) Evidence of certification or registration from a nationally-recognized professional association or society for the profession that is known to grant certification or registration to members of the profession who have achieved a certain level of competence in the profession.   Membership in a professional association is insufficient evidence of equivalency.  An association which grants certification or registration in the profession should have an accrediting body which has standards for the profession, and which issues an official document to applicants verifying that they have been awarded professional credentials in the profession.

    "(iii) Equivalency by the Service.
    "A Service examiner should evaluate education, training, and work experience  to determine equivalency only when the evidence submitted shows that an authoritative source has not been used to determine equivalency,or when the petitioner is requesting an evaluation by the Service in conjunction with a determination by an authoritative source.
    "(A) College-level education.  The petitioner may establish from an authoritative source noted above, or from transcripts, certificates, or other such school records that the alien has college-level education.  College-level training may have been acquired at a college or university or other academic institution which grants a degree, diploma, or certificate, such as a technical college.
    "(B) Specialized training.  Specialized training may have been acquired through an apprenticeship program, employee-sponsored training courses, vocational training schools,or other commercial training facilities.  The starting and ending dates of all training in the field must be shown.  Training certificates and an outline or summary of the curriculum should be submitted.
    "(C) Professional-level experience.  Only the alien's progressively responsible work experience directly related to the profession and professional-level experience may be credited towards this requirement.  The experience must have been gained while working with supervisors, peers, or subordinates who are themselves professionals.  Letters and or affidavits detailing the experience must state what aspects of the profession were learned on the job and when, how learned, under whose supervision, and the qualifications of any supervisors or trainers who provided instruction.  Statements must be very specific with regard to actual duties performed and dates of employment.  Brief statements, such as the alien was employed by the firm for 15 years as an engineer, are insufficient.
    "(D) Professional standing.  The regulations at Sec. 214.2(h)(3)(iii)(C)(5) list examples of types of documentation from which the petitioner can select one as documentation that the alien has professional standing.  However, petitioners are not limited to the forms of documentation listed.
    "(E) Computation of equivalency by the Service.  The Service will count U.S. and foreign college-level education as such.  Three years of specialized training and/or professional-level experience will be equal to one year of college.  Therefore, an alien who has one year of college will need nine years of specialized training and/or professional-level experience to have training equivalent to that acquired by obtaining  the usual bachelor's degree.  As another example, the alien may have been an engineering technician providing support for several professional engineers for five years before being promoted to a professional engineering position.  The alien has been working as a professional engineer for 10 years.  The evidence shows that during the last two years of the alien's employment as a technician, the alien was permitted to assume most of the same  duties which the professional engineers performed, under their close supervision.  During that two-year period, the alien also completed two six-months training courses at night in electrical  engineering.  In computing the 12 years of specialized training and professional-level work experience needed to be equivalent to that acquired by obtaining a degree, you would count the alien's one year of specialized training and two years of professional-level experience while he or she was an engineering technician.  The alien would need nine years of experience as an engineer to qualify as a professional engineer.
    "(F) Occupational licensure.  It may be necessary in some cases for the examiner to request that the petitioner provide evidence of the licensure requirements of the particular state since requirements vary among states.  Some states will issue a temporary licensure which is valid for longer than one year.  The petition may be approved initially for the period which the temporary license is valid.  Any limitations which the state places on a license must be considered in determining whether the alien can fully practice the occupation immediately upon entry into the United States."

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