Degree Equivalency for EB3 Professionals and EB3 Skilled Workers

 

Introduction: EB3 Degree Equivalency

EB3 VisaIn order for a petition in the third preference employment-based (EB3) immigrant visa category to be approvable, the beneficiary of the petition must meet certain educational and/or experience requirements. If the petition beneficiary is relying upon a foreign baccalaureate degree for EB3 skilled worker classification, it must be demonstrated on the petition that the degree is the equivalent of a U.S. baccalaureate degree. In this article, we will explore degree equivalency in the EB3 context.

Please see our article on the EB3 category to learn more [see article].

EB3 Degree Equivalency in the Statutes and Regulations

Statute

The EB3 preference category is authorized by statute in section 203(b)(3) of the Immigration and Nationality Act (INA).

Section 203(b)(3)(i) authorizes immigrant visas for “skilled workers.” In order to qualify for an immigrant visa as a skilled worker, the petition beneficiary must be qualified to perform “skilled labor (requiring at least 2 years training or experience)…”

Section 203(b)(3)(ii) authorizes immigrant visas for petition beneficiaries “who hold baccalaureate degrees and who are members of the professions.”

Regulations

Section 203(b) is implemented through regulations found in 8 C.F.R. 204.5(l).

8 C.F.R. 204.5(l)(2) defines a “professional” under INA 203(b)(3)(ii) as “a qualified alien who holds at least a United States baccalaureate degree or a foreign equivalent degree and who is a member of the professions.” 8 C.F.R. 204.5(l)(3)(C) explains that “[e]vidence of a baccalaureate degree shall be in the form of an official college or university record showing the date the baccalaureate degree was awarded and the area of concentration of study.”

In its definition of “skilled worker” under INA 203(b)(3)(i), the regulations found in 8 C.F.R. 204.5(l)(2) state that “[r]elevant post-secondary education may be considered as training for [meeting the requirement for two years training or experience].”

Understanding the Issue in the Context of Statute and Regulations

The regulations interpret the section 203(b)(3) of the INA in two important ways with regard to degree equivalency.

First, section 203(b)(3)(ii) of the INA specifies that a baccalaureate degree is required in order to qualify as a “professional.” 8 C.F.R. 204.5(l)(2) makes explicit that a “foreign equivalent degree” may be accepted as meeting the requirement. However, as we will see, the foreign degree must be “equivalent” to a 4-year U.S. baccalaureate degree, and merely having obtained a foreign baccalaureate degree will not necessarily satisfy the requirement.

For “skilled workers,” the statute in section 203(b)(3)(i) does not define “2 years training or experience.” 8 C.F.R. 204.5(l)(2) defines “training or experience” as including “relevant post-secondary education.” Thus, while post-secondary education is not required in order to qualify under the EB3 category as a “skilled worker,” evidence of such education may be counted, so long as it is relevant, toward meeting the “2 years training or experience requirement.”

Labor Certification and Degree Equivalency

In order to file a petition for an immigrant visa in the EB3 category, the petitioner must first seek and obtain labor certification for the beneficiary. This is done by filing the ETA Form 9089 with PERM. How the position is described on the ETA Form 9089 will determine how the United States Citizenship and Immigration Services (USCIS) evaluates the beneficiary's qualifications for the position. For the foregoing section, we will be referring to section “H” of the ETA Form 9089 [see Form 9089].

If the petitioner indicates that the petition requires a baccalaureate degree, then USCIS will evaluate whether the beneficiary meets the requirements as an EB3 professional. If the beneficiary is relying on “foreign equivalent degree,” it is important for the petitioner to indicate on the ETA Form 9089 that a “foreign educational equivalent” is acceptable. However, if the petitioner indicates that an “alternate combination of education and experience” is acceptable, USCIS will evaluate the eventual petition in the EB3 skilled worker category so long as a baccalaureate degree is not an explicit requirement. Note that it is imperative for the petitioner to ensure that both the position and the education/experience requirements meet the minimum requirements for classification as an EB3 skilled worker.

It is important to note that setting the requirements for the position is not a mere strategic decision. Rather, the position must qualify for EB3 classification, and the requirements for the position must make sense in light of the position itself. Petitioners are always well-advised to discuss this in advance with an experienced immigration attorney for guidance in how to best construct the labor certification application given the position for which certification is sought and the qualifications of the alien beneficiary of the eventual EB3 immigrant visa petition.

Degree Equivalency and EB3 Professionals

If the petition is being filed for an EB3 professional, the beneficiary must have a baccalaureate degree or a foreign equivalent degree. Unlike for degree equivalency in the EB2 category, no combination of education and experience will satisfy the degree requirement if he or she does not have a baccalaureate degree or a foreign equivalent degree [see EB2 article]. Furthermore, because the requirement is for a baccalaureate degree or foreign equivalent degree, no combination of lesser degrees will suffice.

The most common complication for meeting the EB3 degree requirement arises when the beneficiary possesses a foreign baccalaureate degree from a 3-year program abroad. The major administrative precedent on the issue comes to us from the Matter of Shah, 17 I&N Dec. 244 (BIA 1977) [PDF version]. The Matter of Shah concerned an applicant under the EB3 category who argued that his baccalaureate degree from a 3-year program in India was the equivalent of a U.S. baccalaureate degree. However, the decision rejected his arguments on two grounds:

  1. The degree was a “B.S. (Special)” in chemistry, but it was unclear “how the term 'special' qualifies or limits the degree.” The Board was told that the “special subject” was chemistry, but could not ascertain based upon the record whether this was the equivalent of a U.S. baccalaureate degree in chemistry.
  2. The record indicated that the degree was completed in a 3-year course of study, “which is not equivalent to a United States baccalaureate degree, usually requiring 4 years of study.”

The second point is the most important precedent from the Matter of Shah. Immigration adjudicators are required to follow the Matter of Shah, which directs that a baccalaureate degree obtained abroad from a 3-year course of study is generally not the equivalent of a U.S. baccalaureate degree.

However, the Matter of Shah does not necessarily mean that an alien with a 3-year baccalaureate degree will be unable to meet the requirements. Chapter 22(j)(1)(C) of the Adjudicator's Field Manual (AFM) instructs USCIS adjudicators to consider the following when determining whether a baccalaureate degree from a 3-year program is the equivalent of a U.S. baccalaureate degree:

  • [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.

If the petition relies upon foreign degrees, the petitioner should obtain a credentials evaluation as specified in the AFM to demonstrate that the degree in question is the equivalent of a U.S. baccalaureate degree. However, USCIS will only consider the credentials evaluation favorably if it presents “a credible, logical, and well-documented case.”

Furthermore, USCIS will look to the Electronic Database for Global Education (EDGE) to help determine whether a foreign degree is the equivalent to a U.S. baccalaureate degree. Accordingly, employers preparing EB3 petitions and immigration attorneys should be aware whether a specific degree in question is considered equivalent in the EDGE system.

For example, in the non-precedent decision in the Matter of ___, 2012 WL 4108192 (AAO Jan. 3, 2012), the AAO used the EDGE system to determine that a 3-year baccalaureate degree from Wales was the equivalent of a 3-year baccalaureate degree from the United States.

Furthermore, foreign advanced degrees have been found to be the equivalent of baccalaureate degrees in certain cases.1

In general, baccalaureate degrees obtained from foreign 3-year programs will not meet the degree requirement for being an EB3 professional. In order to meet the degree requirement, the petitioner must demonstrate that the degree is comparable to a 4-year U.S. baccalaureate degree program. If it is determined that the petitioner will be unable to meet this standard, it may be possible to seek classification as an EB3 skilled worker instead.

Note on Baccalaureate Degrees for EB3 Professionals

It is important to note that merely having a U.S. baccalaureate degree or its equivalent will not in every case qualify for EB3 classification as a professional. In the precedent decision in the Matter of Ling, 13 I&N Dec. 35 (RC 1968) [PDF version], it was held that a U.S. baccalaureate degree in “Business Administration” without a particular emphasis did not per se qualify the applicant to EB3 classification under the rules that existed for the classification at the time. Rather, the degree (or combination of degree and experience in the case of skilled workers) must relate directly to the position being sought.

Degree Equivalency and Skilled Workers

While there is no specific degree requirement for EB3 skilled workers, a degree may be counted as “experience” toward meeting the basic requirements for EB3 classification for skilled workers. If a petitioner intends for the petition to be adjudicated for an EB3 skilled worker, he or she must ensure that the ETA Form 9089 does not require a baccalaureate degree or foreign equivalent degree. If it does, USCIS will adjudicate the petition for an EB3 professional rather than an EB3 skilled worker. However, if the ETA Form 9089 lists a baccalaureate degree “or its equivalent,” the petition can be adjudicated for an EB3 skilled worker instead.

It is important for the employer to clearly define “or its equivalent” on the ETA Form 9089. For example, if the employee is working for the petitioner in H1B status, the petitioner may, for example, consider citing the H1B degree equivalency regulations [found in 8 C.F.R. 214.2(h)(4)(iii)(D)] as a requirement for the position for which EB3 classification is sought (if applicable).2

The District Court for the District of Oregon issued an instructive decision in Grace Korean United Methodist Church v. Chertoff, 437 F.Supp.2d 1174 (Nov. 3, 2005). In this case, the petitioner requested that the petition be adjudicated under either the EB3 professional or skilled worker category. The petitioner demonstrated that the beneficiary met the requirements for the petition by submitting evidence of his education, relevant experience, and degree equivalency determinations. The petition was denied because the beneficiary did not have the equivalent of a U.S. baccalaureate degree based on formal education alone. However, the District Court reversed the USCIS and held that the beneficiary was eligible for classification as an EB3 skilled worker. In doing so, it noted that the petitioner had set the requirements for the position as “baccalaureate degree or its equivalent,” and the beneficiary's combination of education and experience met the requirements under the regulations. Furthermore, it noted that petitioners are not required to state whether classification is being sought as a professional or skilled worker.

In SnapNames.com, Inc. v. Chertoff, 2006 WL 3491005 (Nov. 30, 2006) the District Court for the District of Oregon held that a combination of lesser degrees could support a petition for an EB3 skilled worker.

Conclusion: EB3 Degree Equivalency

An employer seeking to file an employment-based immigrant visa petition should first consult with an experienced immigration attorney. An immigration attorney will be able to help the employer determine which category is most appropriate given the nature of the position and the qualifications of the applicant. If the petition is ultimately filed in the EB3 category, these factors will determine whether the petition should seek to classify the employee as a professional or as a skilled worker. If the petition is for an EB3 professional and he or she has a foreign baccalaureate degree that is not clearly the equivalent of a U.S. baccalaureate degree, it will be imperative for the petition to include credible evidence to demonstrate to USCIS that the degrees are equivalent.

___________________

  1. See: Matter of ___, TSCS, SRC 07 249 51518 (AAO July 28, 2010), published on AILA InfoNet at Doc. No. 10102666 at P.2 n.2 [PH.D. in agriculture and forestry specializing in dairy technology qualified for position of “food technologist” as an EB3 professional]
  2. Wada, Ronald Y., AILA's Focus on EB-2 & EB-3 Degree Equivalency, (AILA 2007) 31-32

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. 1203-04, Print. Treatises & Primers.

Fragomen, Austin T., Careen Shannen, Daniel Montalvo, “§ 16:21. Professionals with bachelor's degrees,” 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. 28-32, Print. AILA's Focus Series