2/14/2010

As the season for FY 2011 H-1B cap filing will open beginning from April 1, 2010, there are a few rules which often confuse the master degree holders in the H-1B proceedings. The rules involve eligibility for special 20,000 annual H-1B cap numbers for master degree holders and eligibility for H-1B employment with H-1B dependent employers exempt from recruitment and no-displacement attestation requirements. The definitions for "master's" degree differs between these two rules. 

1. Degrees earned from U.S. higher learning institutions only. Accordingly, those who earned a master or higher degree in foreign countries are not eligible for this special cap filing

• Degrees in "any" specialty are acceptable for the purpose of 20,000 cap eligibility. It does not require that the degrees must be earned in the specialty (major) related to the H-1B employment. Accordingly, even "music" master degree holder is eligible for this special cap number for the IT position.

• However, it is one thing whether one is eligible for 20,000 cap number and it is other thing whether one is eligible for the specialty requirement for the H-1B petition. For the latter, one must have minimum of a bachelor's degree or equivalent combination of education, training and experience or simply equivalent years of progressive experience (3 year progress experience = 1 year undergraduate degree program).

• In the illustration, the foreign worker can prove it by a bachelor's degree in Computer Science or related fields of study or alternatively AA degree in combination of years of experience in Computer Science related jobs or simply 12 years or longer years of progressive experience in the Computer Science related jobs.

• Years of work experience or training cannot substitute a master's degree requirement. The foreign worker must have a "degree" and equivalent experience is not acceptable unlike the H-1B petition thresholds and unlike green card proceeding that accepts a bachelor's degree plus five years of progressive work experience as equivalent to a master's degree. It ain't working in 20,000 H-1B special cap benefits.

2. Master's Degree Requirement for Employment with H-1B Dependent Employment Without Being Subject to Recruitment and No U.S. Worker Displacement Evidence and Attestations

• Degrees earned from any higher learning institutions in the world acceptable. All foreign master degrees which are equivalent to U.S. master degrees are acceptable for this purpose. It is not limited to U.S. degree holders. 

• Degrees must be earned in the specialty which are related to the H-1B employment. Accordingly, unlike the 20,000 special cap number eligibility, here the major field of study in the master degree program must be in the specialty area required for the H-1B position. Those who hold a master degree in music is not eligible for this benefit if the job is an IT job.

• As for master's degree equivalent experiences, the same rule applies here that years of work experience or training cannot substitute a master's degree requirement. The foreign worker must have a "degree" and equivalent experience is not acceptable unlike the H-1B petition thresholds and unlike green card proceeding that accepts a bachelor's degree plus five years of progressive work experience as equivalent to a master's degree. It ain't working in H-1B dependent employer exemption from the attestation requirements.