- Facts, Procedural History, and Legal Issues
- AAO's Analysis
- New Rule
- Application of New Rule to Instant Case
- Decision in the Instant Case
On April 17, 2017, the United States Citizenship and Immigration Services (USCIS) issued Policy Memorandum 602-0144, designating a decision of the Administrative Appeals Office (AAO) as an adopted decision, that is, binding policy, for the USCIS [PDF version]. The decision, now titled the Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017), dealt with assessing provisional certificates from colleges or universities for purpose of evaluating whether they show that an employment-based petition beneficiary completed his or her degree requirements. The decision clarified that the “USCIS must conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.” Provided that the analysis shows that these requirements have been met, the “USCIS will consider the date of the provisional certificate for purposes of calculating post-baccalaureate experience.”
As an adopted decision, the guidance in the Matter of O-A-, Inc. will be binding on all USCIS personnel. However, because the decision is not a precedent decision, it will not bind other immigration personnel. Please see our full article on different types of AAO decisions to learn about the distinctions between different decisions, including adopted and precedent decisions [see article].
In this article, we will discuss the decision in the Matter of O-A-, Inc., and what its adoption as binding policy guidance for the USCIS means going forward.
The Petitioner in the case was a computer software business. It sought to employ the Beneficiary as a computer software organizer in the employment-based second preference (EB2) category as a member of the professions holding an advanced degree under section 203(b)(2) of the Immigration and Nationality Act (INA).
In order to qualify for EB2 classification, the beneficiary of the immigrant visa petition must be a professional in possession of an advanced degree or its equivalent (see 8 C.F.R. 204.5(k)(4)(i)). Under the rules, a baccalaureate degree alone is not sufficient to qualify for EB2 classification. Either an advanced degree (post-graduate) or its equivalent is required. A baccalaureate degree-holder with an additional five years of post-baccalaureate progressive experience may qualify for EB2 classification through the degree equivalency provisions (see 8 C.F.R. 204.5(k)(2); and 8 C.F.R. 204.5(k)(3)(i)(B)). Please see our full article on EB2 degree equivalency to learn about the issues in detail [see article].
In the instant case, the Petitioner sought to establish that the Beneficiary had the requisite five years of post-baccalaureate progressive experience to qualify for EB2 classification. As evidence, the Petitioner submitted a certificate from the Beneficiary's university evincing that the Beneficiary had completed undergraduate studies before the date on the Beneficiary's diploma.
However, the Director of the Nebraska Service Center, relying on the issuance date of the Beneficiary's bachelor's degree diploma, found that the Beneficiary could not show a minimum of five years of post-baccalaureate experience to meet the EB2 degree equivalency requirement. The Petitioner appealed this adverse decision to the AAO. The Petitioner argued that the Director should have measured from the date the Beneficiary received a provisional certificate demonstrating when the degree was completed and approved rather than the issuance date of the diploma in calculating the commencement date of her post-baccalaureate progressive experience. Under this metric, it would be possible for the Beneficiary to establish the requisite five years of post-baccalaureate progressive experience.
Upon de novo (from the beginning) review, the AAO sustained the Petitioner's appeal. In the foregoing sections, we will examine the AAO's reasoning and decision.
The Beneficiary in the case possessed a bachelor's degree in engineering from India. Two key points were not at issue on appeal. Firstly, there was no question as to whether the Beneficiary's bachelor's degree itself qualified for EB2 purposes. Secondly, there was no question as to whether the Beneficiary's post-degree experience qualified as “progressive experience.”
The only issue in the case was when the Beneficiary's university conferred her degree because this was dispositive in determining when the Beneficiary could begin to be credited for post-degree progressive experience. Counting from the issuance date of the diploma made it impossible for the Beneficiary to demonstrate five years of post-baccalaureate experience. Based on the issuance date of her diploma, the Director found that as of the Beneficiary's priority date (the date that her labor certification was filed), the Beneficiary had accrued only four years and eight months of progressive experience. However, the Beneficiary would meet the requirement if her work experience was counted from the date of her provisional certificate, which certified that she had completed all of her degree requirements prior to the date of her diploma.
Accordingly, the key question for the AAO was whether the five years of progressive experience could only be measured from when the Beneficiary received her formal diploma itself, or when the Beneficiary completed all of the requirements for her degree and received a provisional certificate establishing this fact. For the foregoing reasons, the AAO determined that the date could be counted from the issuance of the provisional certificate.
The AAO explained that the statutes and regulations governing EB2 classification “speak in terms of 'degrees,' not diplomas.” For this reason, the AAO stated that it was “clear” that it could not “simply limit our analysis to the date on which a university confers a formal diploma on its newalumni.” The AAO further found that the “[a]pplicable EB-2 regulations reflect this distinction.” For example, 8 C.F.R. 204.5(k)(3)(i)(B), which pertains to “bachelor plus five” petitions, contains an “initial evidence” rule that requires submission of an “official academic record” that shows that the beneficiary has a foreign equivalent “degree.” More tellingly, 8 C.F.R. 204.5(k)(3)(ii)(A), which relates to EB2 “exceptional ability” petitions rather than professionals with advanced degree or equivalent petitions, explicitly distinguishes between the terms “degree” and “diploma.” The relevant portion, quoted by the AAO, is as follows, requires the submission of:
“[a]n official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college or university,… .”
However, it is worth making clear that while the AAO found 8 C.F.R. 204.5(k)(3)(ii)(A) clarifying regarding the difference between the terms “degree” and “diploma,” EB2 exceptional ability petitions are “not grounded entirely in an academic award and thus its initial evidence rule is more expansive than that of the advanced degree category.”
The AAO saw fit to “conduct a case-specific analysis to determine whether, at the time a professional certificate is issued, the individual has completed all substantive requirements to earn the degree and that the college or university has approved the degree.” On this point, the AAO took a different approach than the Director who initially denied the case, rejecting his exclusive reliance on the diploma at the expense of the provisional certificate.
In considering whether a provisional certificate establishes that the beneficiary in a given case “has completed all substantive requirements to earn the degree and that the college or university has approved the degree,” the AAO stated that the following evidence must be considered:
- The individual nature of each university's or college's requirements for each program of study; and
- Each student's completion of those requirements.
The petitioner bears the burden in establishing that a provisional certificate establishes that a beneficiary completed all degree requirements and that the college or university approved the degree. Citing to 8 C.F.R. 204.5(k)(3), the AAO noted that a petitioner “must also submit a copy of a beneficiary's statement of marks or transcript to demonstrate years of study, and coursework completed, along with a copy of the provisional certificate.”
The AAO found that the record in the instant case contains the following:
- A copy of the Beneficiary's statement of marks showing that she passed the final exams;
- A copy of the Beneficiary's provisional certificate issued on May 17, 2006, which stated that she had passed the relevant examination for her degree and that she had satisfied all the requirements for the award of her degree; and
- A copy of the Beneficiary's diploma that was issued on March 30, 2007.
To further support the petition, the Petitioner submitted a letter from the director of evaluation from the Beneficiary's school stating that her provisional certificate was proof of her completion of all degree requirements at the time the certificate was issued. Furthermore, the letter made clear that the Beneficiary's diploma was delayed only for administrative reasons having nothing to do with the Beneficiary's own credentials. Accordingly, the AAO found that the record supported the finding that the Beneficiary had completed all substantive requirements for her degree as of May 17, 2006, and that the university had approved the degree.
Finally, the AAO discussed publicly available information from the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE). THE AAO stated that AACRAO EDGE's discussion of provisional degree certificates “accords with the Petitioner's claim and evidence.” In discussing provisional certificates issued by recognized Indian universities, AACRA EDGE stated that “[t]he Provisional Degree Certificate is evidence of completion of all requirements for the degree in question.” Furthermore, it stated that such a certificate “is comparable to an official [U.S.] academic transcript with a degree statement certifying completion of all requirements for the degree…” Finally, AACRAO EDGE noted that some students from Indian universities in fact never receive their “final Degree Certificate,” and instead rely only on the provisional degree certificate as evidence of degree completion.
The AAO found that the Beneficiary's provisional degree certificate, in conjunction with her statement of marks, demonstrated both that the Beneficiary had completed all substantive degree requirements and that her university had approved her degree at the time of the issuance of the provisional certificate. The provisional certificate constituted the equivalent of a U.S. baccalaureate degree. Furthermore, the Beneficiary demonstrated that she had accrued five years of progressive experience subsequent to the issuance of the provisional certificate. Accordingly, the AAO sustained the Petitioner's appeal because it demonstrated that the Beneficiary met the minimum education and experience requirements of the labor certification and of EB2 classification.
The adopted decision is noteworthy in that it sets clear rules as to when an individual may rely on a provisional degree certificate to establish that he or she completed all of the requirements for a degree. The certificate must establish that the grantee completed all substantive degree requirements (in conjunction with other required evidence) and that the issuing college or university approved the degree. Although the decision deals specifically with an EB2 case, its reasoning may be applicable to other employment-based petitions where evidence of a degree is required.
Before filing an employment-based immigrant or nonimmigrant petition, a petitioner should consult with an experienced immigration attorney. An attorney will be able to assess the proposed employment and determine whether the petitioner has the evidence to support the petition which he or she intends to file. In the case of an EB2 professional petition, this would include an assessment of the intended beneficiary's academic/work-related qualifications.
To learn about the EB2 category in general, including EB2 degree equivalency issues, please see the full category on our website [see category].