© Attorney Farhad Sethna 2013
Under employment based immigration law, a foreign worker will be considered to have a Baccalaureate or Bachelor’s degree if the alien worker can meet certain educational and experience requirements. This is essential for the foreign worker to qualify as a “professional”, which is a pre-requisite for some employment-based visa classifications, for instance, the H-1b.
The foreign worker may already have a foreign Bachelor’s degree which is equivalent to a US Bachelor’s degree. Alternatively, the foreign worker can have a combination of education and experience which collectively are the equivalent of a US-issued Bachelor’s degree. In most cases, an applicant will supplement the petition for non-immigrant worker with a report or opinion letter from a foreign-credentials examiner which states the foreign degree’s equivalence to a US-issued educational qualification.
In other cases, if the prospective employee does not have a degree, but perhaps only partial credits toward a degree, a degree equivalence is possible using the employee’s work experience. This is where the USCIS’ 3-for-1 rule comes into play.
What is the AAO?
The AAO (Administrative Appeals Office) is the appellate division within the USCIS which reviews decisions made by the USCIS Service Centers on employment based visa applications. Appeals can be brought to the AAO either by the petitioner or by the USCIS. This case followed the same pattern.
The employer (a law firm) wished to hire a “forensic alcohol criminalist”. The candidate in question did not have the equivalent of a U.S. issued Bachelor’s degree (a prerequisite for H-1b status). Therefore, the employer had to rely on a degree equivalence through the employee’s prior experience. The employer obtained an opinion letter from a recognized evaluations specialist which confirmed the intended employee had experience equal to a U.S. issued bachelor’s degree. However, the USCIS determined the evidence was inadequate, and disagreed with the report.
The USCIS denied the employer’s H-1b petition for a “forensic alcohol criminalist”. The matter was then appealed to the Administrative Appeals Office.
The AAO determined that the USCIS’ interpretation of the degree equivalency in light of the regulations was incorrect and approved the petition.
For years, the USCIS has held that three years of work experience are equivalent to one year of university education.
The 3-for-1 rule is codified at 8 C.F.R. §214.2 (h)(4)(iii)(D)(5) (in pertinent part):
“For purposes of determining equivalency to a Baccalaureate degree in the specialty, 3-years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks.”
This reaffirms once again the 3-for-1 rule as it applies to individuals who do not have a Bachelor’s degree or its US equivalent.
Application of the ruling:
While the 3-for-1 rule is alive and well, and the AAO has confirmed that it continues to apply it favorably, that does not mean that the rule will be applied blindly. As this case demonstrates, the USCIS continues to take a skeptical view of equivalency opinions, especially experience evaluations, which typically require much more proof than education equivalencies. The lesson to be learned from this case is that in any situation requiring an experience equivalence, it is necessary to look at the case skeptically – as the USCIS might. Examine every avenue to obtain and provide relevant evidence to the evaluator and include any relevant evidence in the evaluation so that the USCIS can readily see the foundation on which the report was based. This will give the USCIS less reason to doubt the report, and therefore, its ultimate conclusion.
Suggested evidence to accumulate at the start of such a process might include the following: detailed CV from the employee; letters from prior employers on letterhead, stating exactly what the employee did; reports or documentation showing the employee’s name and capacity; correspondence in which the employee played the role claimed as part of the experience; company brochures or literature naming or picturing the employee; training certificates; and educational transcripts for any time the employee was engaged in a formal education related to the job sought.
While the 3-for-1 rule may be alive and well, it does not mean that a poorly documented opinion letter will suffice to convince the USCIS that the beneficiary is a “professional” and thus qualifies for an employment-based visa classification. It is necessary to document and prove every factor leading to the evaluator’s ultimate reasoning.
Copyright, Farhad Sethna, Attorney, 2013
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.