Immigration lawyers often get this inquiry from non-immigrants with a bachelors degree:
“I have a bachelors degree, can I apply for an H-1B?”
Or
Someone from an employer calls and asks:
“My niece (or nephew) has a degree, can I sponsor her (him), I own a store (or a restaurant, or any other business).”
On both instances, the proper answer is “it depends”. I can be technical actually and say the answer to the first question is always no because the REAL PETITIONER IN H-1BS IS THE EMPLOYER, not the beneficiary. In fact the employee does not even sign the I-129 forms.
A degree is just part of the equation. And yes, there is even a provision that allows for “degree equivalence” to be used for H-1Bs if your experience or combination of education and experience is evaluated by an accredited evaluating party as one equivalent to a Bachelors degree in the United States.
A Bachelors degree is simply part of the equation.
An H-1B analysis involves some sort of a triangle that has to be interconnected.
One. The Company.
Two. The POSITION. The most important part.
Three. The degree.
The focus is often on one and three, but to me, it is the position that is important.
The main inquiry: Does the position require the bachelors degree (or the advanced degree) that the beneficiary has?
Okay, let’s take the restaurant example.
Does a small restaurant with 3 employees really need the manager to have a bachelors degree? Can we prove it?
What about a restaurant with more employees but with just one branch, but which holds several banquets and mini-conferences?
What if other similarly sized restaurants (in size and scope) require a bachelors degree, can we use that as an argument?
And so you go through that same inquiry for each entity and each position and each degree for every situation. So oftentimes, even if the employer wants to petition someone, and if that someone has a bachelors degree, the inquiry does not stop there. The kind of business, the kinds of position, and the kind of degree must all relate to each other. It’s that connectionwhich determines the plausibility of a certain H-1B petition.
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