10/25/2005

The master's degree holders are treated different in the H-1B rules in the H-1B annual cap and the recruitment and no displacement attestations for the Labor Condition Application for the H-1B dependent employers. However, the specific master's degree requirement is different for the purpose of the 20,000 cap exempt and for the purpose of the attestation requirement waiver for the H-1B dependent employers. 

(1) For instance, the 20,000 H-1B cap exempt takes U.S. master's degree in "any" field of specialty and the major filed of study does not have to be related to the employment. Meanwhile, even if the alien holds a U.S. master's degree, unless the major field of study is related to the employment, the H-1B dependent employer cannot claim a waiver from the recruitment and attestation requirements. Accordingly, for the H-1B dependent employer to claim both 20,000 H-1B cap exemption and the recruitment and no-displacement attestations requirement waiver, the alien must hold not only a U.S. master's degree but also his/her specialty must be the ones related to the employment. 

(2) For the purpose of the waiver from the attestation requirement in the Labor Condition Application, any foreign master's degree is qualified, while for the purpose of 20,000 H-1B cap exempt, only U.S. master's degree holders are qualified.

Since March 8, 2005, the H-1B dependent employers are required to attest to the recruitment before such employer can file a H-1B petition. The H-1B dependent employers are also required to attest to the no displacement of U.S. workers during 90 days before filing of the LCA as well as during 90 days after filing of the LCA (180 days altogether) by such H-1B dependent employers. 

The H-1B employers are also responsible for violation of such requirements by their clients where their H-1B employees placed unless they confirm that the clients has not and will not violate no-displacement requirement of U.S. workers during the 180-day period of time. Remember that for the purpose of the exemption from such attestations, the alien must have no only a master's or higher degree but also majored in the specialty field of study which is related to the H-1B employment. The penalty for violation of these attestation requirement or waiver rules is very steep and the U.S. employers hiring an alien holding a master's degree in education should keep the foregoing distinction in mind.

In both 20,000 H-1B cap exempt and LCA attestations waiver, only holders of a master's "degree" are eligible and equivalency evaluation considering experience or training or other education is not acceptable.