The H-1B Classification

By Liu Yu

4. Beneficiary’s Qualifications

The mere fact that the H-1B job qualifies as a specialty occupation is insufficient to obtain H-1B status on behalf of the beneficiary. The H-1B petition must also present evidence that the alien qualifies to perform services in the specialty occupation. The beneficiary’s background will be evaluated after the adjudicator has found that the position falls within the professions.

The regulations state that the beneficiary must possess one of the following qualifications:

● U.S. bachelor’s degree or higher degree required by the specialty occupation from an accredited college or university

The beneficiary may qualify if he or she has a U.S. bachelor’s degree or higher degree in a field related to the occupation. The petitioner’s industry may also be relevant in determining whether the beneficiary’s field of study is related to the occupation.

● Foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university

The beneficiary may also qualify if he or she has a foreign degree which is equivalent to a U.S. bachelor’s degree or higher degree in a field related to the occupation. Foreign degrees should be accompanied by a credentials evaluation. However, credentials evaluations are advisory only and the adjudicators are not compelled to rely on them.

● An unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment

The beneficiary’s professional licensure may also be presented as evidence for qualification for the specialty occupation. Evidence of full licensure may be required in addition to educational credentials. For some medical occupations, the beneficiary’s professional licensure alone may suffice for qualification.

If a state or local license is required for an individual to fully perform the duties of the occupation, the beneficiary usually must have that license prior to approval of the petition. Please also note that when the beneficiary has a temporary license, the approval period of the petition or extension of stay application cannot exceed the validity period of the temporary license.

● Cumulative education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

Alternatively, a beneficiary may qualify for H-1B status without a baccalaureate degree through a combination of education, training, and work experience related to the specialty. The major aspect of this is deciding whether the quality of experience is at high enough level to qualify as “professional”.  Specifically, the H-1B petition must demonstrate the following facts:

◆ The beneficiary’s training and/or work experience included the theoretical and practical application of specialized knowledge required by the specialty occupation;

◆ The beneficiary’s experience was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; and

◆ The beneficiary has recognition of expertise in the specialty.

To establish the beneficiary’s qualification above, the petition must include documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence to show that the beneficiary is qualified to perform services in a specialty occupation.

5. The Employment Relationship

Generally, the H-1B petition should provide sufficient detail that the petitioner and beneficiary are engaged in a valid employer-employee relationship, with emphasis on:

● The petitioner’s ability to hire, fire and supervise the beneficiary;

● The petitioner’s supervision over the overall direction of the beneficiary’s work; and

● Continued right to control the beneficiary throughout the duration of the requested H-1B validity period.

This evidence may include copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.

If the beneficiary obtains H-1B status and subsequently is dismissed from employment by the employer before the end of the period of authorized admission, the petitioner shall be liable for the reasonable costs of return transportation of the alien abroad, to the beneficiary’s last place of residence abroad.

A change of employer petition (COE) may also be filed on behalf of a foreign national who already holds H-1B status in the United States, if the alien is in the United States and seeks to change employers, the prospective new employer must file a petition on Form I-129 requesting classification and an extension of the alien’s stay in the United States. If the new petition is approved, the extension of stay may be granted for the validity of the approved petition.

Similarly, a petition for concurrent employment may be filed for new employment with an additional employer in the same nonimmigrant classification the beneficiary currently holds while the beneficiary will continue working for his or her current employer in the same classification.

（To be continued）

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