- Introduction to the Degree Requirement for EB2 Advanced Degree Professionals
- Statutory Background
- Relevant Department of Homeland Security Regulations
- The Labor Certification Requirement
- Degree Equivalency Requirement for Foreign Degrees
- Baccalaureate Degree and Five Years of Work Experience to Meet Requirement
- Tension Between the Labor Certification Requirements and USCIS Requirements
- Conclusion: Meeting the Degree Requirement for EB2 Advanced Degree Professionals
In order for an immigrant visa petition in the Second Preference (EB2) category as an advanced degree professional, the beneficiary of the petition must meet certain educational benchmarks in order to qualify for EB2 classification. Furthermore, the petition must be for a position that requires an advanced degree professional. In many cases, meeting the educational requirement for EB2 classification may be straightforward (e.g. where the applicant has a U.S. master's degree or doctoral degree).
However, in situations where the applicant is relying upon a foreign degree to meet the requirements for EB2 classification, the EB2 petition must demonstrate “degree equivalency,” that is, that the foreign degree equivalent to a qualifying U.S. degree. These petitions will face high scrutiny if the foreign degree program was shorter than the normal U.S. degree program. Furthermore, incongruences between the labor certification process and the Form I-140 adjudication process may also create problems for many petitions.
In this article, we will explain the rules for meeting the degree equivalency requirements as an “advanced degree professional,” and the issues that commonly appear in such situations.
Section 203(b)(2) of the Immigration and Nationality Act (INA) authorizes the EB2 preference category. It states that visas may be made available “to qualified immigrants who are members of the professions holding advanced degrees or their equivalent…”
The relevant DHS regulations for the EB2 advanced degree requirement are found in 8 C.F.R. 204.5(k)(2). These regulations implement section 203(b)(2) of the INA. The regulations state:
[8 C.F.R. 204.5(k)(2)]: Definitions. As used in this section: Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
From the regulation, we glean the following:
- An “advanced degree” is defined as a U.S. academic degree above that of baccalaureate (e.g., master's degree or doctoral degree) or the foreign equivalent thereof.
- A U.S. baccalaureate degree or the foreign equivalent thereof followed by at least five years of “progressive experience” in the alien's specialty will be considered the equivalent of a master's degree.
- If a doctoral degree is required by the specialty, the alien must have a doctoral degree (no work experience may substitute).
In order to satisfy the requirement, 8 C.F.R. 214.5(k)(3)(i) requires the petition to be accompanied by:
- A. An official academic record showing that the alien has a U.S. advanced degree or foreign equivalent degree; or
- B. An official academic record showing that the alien has a U.S. baccalaureate degree or foreign equivalent degree, and evidence in the form of letters from the current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.
With the exception of applications with schedule A designation (limited to certain professions) or special cases where the alien qualifies for a shortage occupation in the DOL's Labor Market Information Pilot Program, the petitioner must first obtain labor certification for the position he or she is seeking to employ the alien before the immigrant visa petition is adjudicated. Applicants who are exempt from the labor certification requirement must still submit a completed and uncertified ETA Form 9089, Foreign Labor Certification.
8 C.F.R. 214.5(k)(2) requires that the position require an advanced degree professional. Accordingly, USCIS will first look to determine whether the position described on the ETA Form 9089 requires an advanced degree professional. Even if the beneficiary meets the requirements set forth in 8 C.F.R. 214.5(k)(2), the petition will be denied if the position described on the ETA Form 9089 does not require an advanced degree professional. If the position is deemed to require an advanced degree professional, than USCIS will move on to determine whether the beneficiary meets the requirements set forth in the applicable regulations.
It is also important to remember that the beneficiary must meet the individual requirements for EB2 classification at the time labor certification is sought for the position.
It is important to note that a “foreign equivalent degree” means “equivalent degree” and not “equivalent education.” Thus, an appeal to comparable education will not suffice for demonstrating eligibility for EB2 classification if the foreign degree is found to not be equivalent to the U.S. degree in question. No combination of insufficient degrees or insufficient degrees and work experience will satisfy the requirement.
In assessing whether a foreign degree is the equivalent of a U.S. degree, United States Citizenship and Immigration Services (USCIS) uses the Electronic Database for Global Education (EDGE).1 Accordingly, immigration attorneys and petitioners should be aware of this when determining whether the credentials of the alien render him or her classifiable as an EB2 advanced degree professional.
Many petitions for aliens under the EB2 category have run into problems when the alien's degree was obtained in a program that was of shorter duration than the typical U.S. program (e.g. a 3-year baccalaureate degree program or 5 years of education to obtain a master's degree).
Petitioners for aliens seeking EB2 classification must be aware of the precedent administrative decision titled the Matter of Shah, 17 I&N Dec. 244 (BIA 1977) [PDF version]. Although Matter of Shah concerned the EB3 category, its holding has been applied consistently to similar EB2 cases since it was rendered.2 The Matter of Shah concerned an applicant under the EB3 category who argued that his baccalaureate degree from India, which he obtained from a 3-year program, was equivalent to a U.S. baccalaureate degree. However, for a variety of reasons, the decision in Matter of Shah disagreed. With specific relevance to EB2 foreign degree equivalency, Matter of Shah stated “[the petitioner] could only have completed a 3-year course of study, which is not equivalent to a United States baccalaureate degree, usually requiring 4 years of study.”
The precedent in the Matter of Shah creates a general presumption about the equivalency of baccalaureate degrees obtained from 3-year programs. The AAO has also interpreted the Matter of Shah to deny petitions when an applicant presents a foreign baccalaureate degree from a 3-year program followed by a master's degree from a 2-year program.3
However, it is not necessarily impossible for an applicant to be found eligible for EB2 status with an application that is depends on a baccalaureate degree obtained from a 3-year program outside of the United States. Chapter 22.2(j)(1)(C) of the Adjudicator's Field Manual (AFM) allows USCIS adjudicators to consider:
- [A] credentials evaluation performed by an independent credentials evaluator who has provided a credible, logical, and well-documented case;
- [A] comparable evaluation performed by a school official who has the authority to make such determination and is acting in his or her official capacity with the education institution.
A petitioner may support one of these two types of evaluations to support a favorable equivalency determination. However, it is important to be cognizant that USCIS will only consider it if it presents “a credible, logical, and well-documented case.” Ideally, it should demonstrate that the 3-year program is, on the work it involved, equivalent to a U.S. 4-year program (or in the case of a 4 year baccalaureate program and 1 year master's degree program, that the 1 year master's degree program was equivalent to a relevant U.S. master's degree program).
In order to qualify as an advanced degree professional by this method, the alien must possess a qualifying baccalaureate degree. Furthermore, the progressive experience must come subsequent to the attainment of the baccalaureate degree. “Progressive experience” was defined in a 2000 USCIS Memorandum (the Cronin Memo) [PDF version]4 as “employment experience that reveals progress, moves forward, and advances toward increasingly complex or responsible duties.” If progressive experience is being relied upon, evidence should be submitted to show that the applicant indeed has 5 years of post-baccalaureate “progressive experience” rather than merely 5 years of experience.
The Cronin Memo notes an interesting scenario where a job position may require a Master's degree and 3 years of experience, and the beneficiary has a baccalaureate degree and 5 years of experience. In this case, the petition may be approvable of the ETA FORM 9089 does not require that the 3 years of experience must take place after the attainment of a master's degree. However, if the ETA FORM 9089 does require that the 3 years of experience take place after the master's degree, the beneficiary in this case would not have the requisite experience for the position, although he or she would meet the basic degree requirements under 8 C.F.R. 204.5(k).
When adjudicating labor certification applications, the DOL uses a Specific Vocational Preparation (SVP) number to determine the degree of experience required for a position. DOL uses this to determine whether the position was advertised in accordance with its regulations for purpose of satisfying the labor certification requirement. 20 C.F.R. 656.17(f)(6) states that the advertisements placed for a position may “[n]ot contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089].
In the EB2 advanced degree professional context, this is problematic because a baccalaureate degree followed by 5 years of experience equals 7 years for SVP while a master's degree and 1 year of experience equals 5 years for SVP. Accordingly, advertising a position with both of those listed as qualifications may lead to a labor certification denial under 20 C.F.R. 656.17(f)(6) (see Talent IT Servs., Inc. 10-PER-93 (Oct. 13, 2010) [PDF version]). It is important for petitioners to remember that when filing for labor certification, the facts must satisfy both the DOL (for labor certification purposes) and USCIS (for adjudicating the immigrant visa petition).
A petitioner seeking to file a petition under the EB2 category for a beneficiary as an advanced degree professional should first consult with an experienced immigration attorney. Such an attorney will be able to assess the underlying facts and determine whether EB2 classification is appropriate given the facts of the situation. When filing under the EB2 category, an experienced immigration attorney will be indispensable in helping the petitioner and beneficiary ultimately have the EB2 petition approved.
Even in more straightforward cases (where the beneficiary has a U.S. master's degree or doctoral degree), meeting the labor certification requirements and satisfying USCIS that the position requires an advanced degree professional is complicated. In more complicated cases, such an attorney will be able to use his or her knowledge of the most current adjudications policies to put together a compelling case that the beneficiary meets the requirements to qualify as an EB2 advanced degree professional.
- For example, see the AAO's non-precedent decision in Matter of __, TSC, SRC 08-198-51124 (AAO Jan. 9, 2009) [used EDGE description of a MBBS from India: “represents the attainment of a level of education comparable to a first professional degree in medicine in the United States,” to determine that a petition for an interventional radiologist position where the beneficiary had a MBBS was approvable in the EB2 classification]
- For example, see the Matter of __, AAU LIN 07-112-53670 (AAO 2008) [finding that the construction of the current EB2 statute is similar to the construction of the then-EB3 statute and applying the Matter of Shah to the EB2 context in denying a petition where the beneficiary had completed a 3-year baccalaureate program in India because it was not equivalent to a U.S. baccalaureate degree]
- For example, see the Matter of __, AAU LIN 06-164-51652 (AAO 2007)
- Memo, Cronin, Acting Assoc. Comm. Office of Program and Yates, Deputy Exec. Assoc. Comm., Field Operations (HQ 70/6.2) (Mar. 20, 2000), published on AILA InfoNet at Doc. No. 00032703
Resources and Materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1194-96, Print. Treatises & Primers.
Fragomen, Austin T., Careen Shannen, Daniel Montalvo, “§ 16:18. Advanced Degree Professionals,” Immigration Procedures Handbook, 2015-16 Ed., Thompson Reuters. 2015. Web. Fragomen Immigration Handbooks, retrieved from Westlaw
Wada, Ronald Y. AILA's Focus on EB-2 & EB-3 Degree Equivalency. Washington D.C.: AILA Publications, 2007. 11-19, Print. AILA's Focus Series