Always keep in mind that I-129 petitions for H classification and I-140 petitions for immigrant preference classification are, with limited exceptions, filed by employers, not employees. The employer, or petitioner, is required to substantiate all of the allegations made in a petition through the submission of evidentiary proof.

In the case of allegations involving educational qualifications, the required evidence is essentially the same whether the petition is for a nonimmigrant H1b petition or an immigrant I-140 preference petition. The H1b regulations are a bit more specific than the I-140 regulations, but petitioners are well advised to follow both sets of rules, irrespective of which petition is filed.

The CIS regulations at 8 CFR 214.2(h)(4)(iv)(A)(1) provide:

“School records, diplomas, degrees, affidavits, declarations, contracts, and similar documentation submitted must reflect periods of attendance, courses of study, and similar pertinent data, be executed by the person in charge of the records of the educational or other institution, firm, or establishment where education or training was acquired.”

This rule pertains to the acceptable contents of “school records, diplomas, degrees, affidavits, declarations, contracts, and similar documentation.” Note that the rule mandates the minimum acceptable content of these types of documents:

“. . . must reflect periods of attendance, courses of study, and similar pertinent data, be executed by the person in charge of the records of the educational or other institution, firm, or establishment where education or training was acquired.”

If the submitted records do not include this specific information, or are not certified as specifically required, the CIS may regard them as insufficient and deny the petition on the basis that the petitioner failed to meet the required burden of proof.

If the degree was granted by a foreign college or university, then the petitioner must provide proof that the foreign degree is the equivalent of a U.S. degree. Again, the regulations at 8 CFR 214.2(h)(4)(iii)(D)(3) provide that anyone performing a credentials evaluation must:

• Consider formal education only, not practical experience: State if the collegiate training was post-secondary education, (i.e., whether the applicant completed the U.S. equivalent of high school before entering college);
• Provide a detailed explanation of the material evaluated rather than a simple concluding statement; and,
• Briefly state the qualifications and experience of the evaluator providing the opinion.

Credentials evaluations are advisory, not binding. The CIS may disregard them if they are not credible or do not conform to the above requirements. In order for the CIS to disregard a credentials evaluation from a competent evaluator, presented in the proper format, they would have to go to great lengths to explain their decision.

We will deal with the issue of trying to obtain educational equivalency for work experience in a separate article.