The “3-for-1 Rule” states that three years of work experience is equal to one year of education in the H-1B context. This rule has been followed for years without question but now the rule might not be as straightforward as it used to be. The Rule was routinely applied to cases where a beneficiary had only completed part of a bachelor’s degree program and was using years of experience to cover the remaining years. After the AAO’s recent decision, the rule should no longer be considered an uncomplicated 3:1 ratio. While this a non-precedential decision, the results could have far reaching effects, especially on how RFE’s are issued and responded to.
The AAO begins by stating that the 3-for-1 rule has been misapplied and is exclusively reserved for use by USCIS agency-determinations of educational equivalency. This means that going forward, technically the Service is the only one that can apply the rule.
Next, the AAO points out that not all years of experience are equal. The requirements for RFE’s are about to become very high. Petitioner’s will be required to “clearly demonstrated” that a beneficiary’s years of experience include the theoretical and practical application of specialized knowledge required by the specialty occupation, that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation and that the alien has recognition of expertise in the specialty. In short, letters of experience will now need to be very detailed and contain specific elements.
However, you also need to show that the beneficiary has expertise in the specialty. This is most easily demonstrated by recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation. This will result in letters from experts becoming a requirement if you would like experience considered. The decision also outlined who can be considered an “expert” for these letters. Remember, even if you obtain great letters USCIS can still determine that those years don’t equal a year of baccalaureate experience.
Finally, the AAO found that only reliable credentials evaluation services that specializes in evaluating foreign education credentials can evaluate a foreign national’s education. So, the submission to the USCIS must now include an evaluation from a foreign credentials evaluation service, expert letters can only be used to show recognition of expertise not educational equivalency.
In sum, the 3 for 1 rule should not be considered the simple 3:1 ratio it has been in the past. Going forward, proving that a beneficiary meets the H-1B educational requirements through years of experience is a completely new animal.