INS Memo on EB-2 Equivalency
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Memo on EB-2 Equivalency
U.S. Department of Justice
Immigration and Naturalization Service
HQ 70/6.2
425 1 Street, NW
Washington, DC 20536
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AD00-08
MEMORANDUM FOR: All
Service Center Directors
All Regional Directors
FROM:
Michael D. Cronin
Acting Associate Commissioner
Office of Programs
William R Yates
Deputy Executive Associate Commissioner
Office of Field Operations
SUBJECT:
Educational and Experience Requirements for
Employment-Based Second Preference (EB-2) Immigrants
This memorandum addresses
issues relating to the Adjudicator's Field Manual, Appendix 22-1. Chapter
22 provides guidance on employment-based immigrant petitions. This memorandum is
being released as an appendix to insure complete Service-wide dissemination. The
policies outlined within this document will eventually be incorporated within
the text of Chapter 22 of the Adjudicator's Field Manual.
Background
In pertinent part, section 203(b)(2) of the
Immigration and Nationality Act (the Act) provides immigrant classification to
members of the professions holding advanced degrees or their equivalent and
whose services are sought by an employer in the United States.
Petitions seeking the classification of alien
beneficiaries as EB-2 advanced degree professionals present a number of issues
for Service Center adjudicators. This memorandum provides guidance regarding
such decisions.
What is an Advanced Degree?
An advanced degree is a U.S. academic or
professional degree or a foreign equivalent degree above the baccalaureate
level.
What is the Equivalent of an Advanced Degree?
The equivalent of an advanced degree is either a
U.S. baccalaureate or foreign equivalent degree followed by at least five years
of progressive experience in the specialty. Consequently, an alien beneficiary
who does not actually hold an advanced degree may still qualify as an EB-2
professional if he or she has the equivalent of an advanced degree.
There are several ways in which an alien seeking
EB-2 classification may satisfy the advanced-degree requirement. The simplest is
by possessing a U.S. academic or professional degree above the level of
baccalaureate. In the alternative, the foreign equivalent of such a degree is
equally acceptable.
An alien with a U.S. or foreign equivalent
baccalaureate degree who does not possess an advanced degree may still meet this
requirement if the baccalaureate-level degree is followed by at least five years
of "progressive experience" in the specialty.
What Elements Must Be Established before an
EB-2 Petition for an Advanced Degree Professional Can Be Approved?
Two critical elements must be established before
an advanced degree EB-2 petition can be approved. First, the position itself
must require a member of the professions holding an advanced degree. Second, the
alien must possess an advanced degree as shown by a master's degree or its
equivalent. The threshold issue regarding the position itself appears to be the
most troublesome in adjudicating EB-2 petitions for advanced degree
professionals.
The key to making this determination is found on
Form ETA-750 Part A. This section of the application for alien labor
certification, "Offer of Employment" describes the terms and conditions of the
job offered. An adjudicator must review the job requirements contained in blocks
14 and 15 of the ETA-750 and determine whether the position requires an advanced
degree professional.
Deciding whether the position requires an
advanced degree professional is independent of whether the alien beneficiary is
himself an advanced degree professional. If the job itself does not require an
advanced degree professional, the petition must be denied, even if the alien
beneficiary actually is an advanced degree professional. Likewise, the petition
must be denied if the alien beneficiary is not an advanced degree professional,
even if the job itself requires an advanced degree professional.
Whether the alien beneficiary actually possesses
the advanced degree should be demonstrated by evidence in the form of a
transcript from the institution that granted the advanced degree. An adjudicator
must similarly consider the baccalaureate transcript and the alien's
post-baccalaureate experience for the alien beneficiary claiming the equivalent
to an advanced degree.
Does the Job To Be Filled by the Alien
Beneficiary Require an Advanced Degree?
A petitioner seeking classification for an EB-2
advanced degree professional must clearly demonstrate that the position requires
a member of the professions holding an advanced degree. In other words, blocks
14 and 15 of the ETA-750 must establish that the position requires an employee
with either a master's degree or a U.S. baccalaureate or foreign equivalent
degree followed by at least five years of progressive experience in the
specialty.
It should be emphasized that the mere absence of
the word "progressive" from blocks 14 and 15 on the ETA-750 is not grounds for
denial of the petition if the required experience is in fact progressive in
nature. Adjudicators should examine the nature of the experience required for
the position as described in block 13 of the ETA-750 in order to determine
whether such experience is progressive.
What exactly is Progressive Experience?
"Progressive experience" is not defined by
statute or regulation. Its plain meaning within the context of EB-2
adjudications is relatively simple; employment experience that reveals progress,
moves forward, and advances toward increasingly complex or responsible duties.
In short, progressive experience is demonstrated by advancing levels of
responsibility and knowledge in the specialty.
Recognizing progressive experience in blocks 14
and 15 of the ETA-750, however, is not so simple. Much of the uncertainty
concerning such determinations involves petitions for highly technical
positions, which invariably describe required experience in highly technical
terms. Such descriptions may be difficult to understand for anyone outside that
specific industry.
Adjudicators who encounter these types of
descriptions should request that petitioners provide, to the extent possible,
plain-English explanations of the experience required. Such descriptions may
take the form of a supplemental statement filed with the Service Centers
indicating why five years of post-baccalaureate and progressive experience would
be necessary to perform successfully the duties set forth in highly technical
job descriptions. The supplemental statement should be an affidavit (or other
statement under penalty of perjury) from some person within the petitioning firm
who has relevant knowledge concerning the minimum acceptable qualifications for
the position involved in the Form I-140. It is incumbent upon the petitioner to
describe the position offered in such a way so that an adjudicator can
reasonably determine whether the job actually requires an advanced degree or, in
the alternative, five years of post-baccalaureate experience that is progressive
in nature.
It is reasonable to infer that highly technical
positions are progressive in nature due to the constant state of change in their
respective industries. This is not to say, however, that five years of
post-baccalaureate experience in a highly technical position automatically
translates to an advanced degree in every case. As with any adjudication, a
petition seeking classification for an EB-2 advanced degree professional should
be decided on a case-by-case basis.
How can these Requirements be Demonstrated?
The terms, "MA," "MS," "Master's Degree or
Equivalent" and "Bachelor's degree with five years of progressive experience,"
all equate to the educational requirements of a member of the professions
holding an advanced degree. The threshold for granting EB-2 classification will
be satisfied when any of these terms appear in block 14.
It is also important to read the ETA-750 as a
whole. In particular, if the education requirement in block 14 includes an
asterisk (*) or other footnote, the information included in the note must be
considered in determining whether the educational requirement, as a whole,
demonstrates that an advanced degree or the equivalent is the minimum acceptable
qualification for the position.
As long as the minimum requirement for the job
offered is master's degree or the equivalent, the position should be found to
require a member of the professions holding an advanced degree. This is true
even if several variations of this requirement are stated.
Examples
The following are examples of actual statements
contained at blocks 14 and 15 of the ETA-750. They are by no means exhaustive.
Their inclusion here is intended to simply illustrate concepts discussed in this
memorandum.
Position 1: Staff Software Engineer
ETA 750 Item 14:
Education - B.S. (or foreign equiv.) comp.
science, elec. eng., or related field.
Experience - 5 years job offered or 5 years related occupation software
engineer.
ETA 750 Item 15:
Exp. must include: design & development of major
software subsystems; RDBMS internals; operating system internals; complex
systems software design; symmetric multiprocessing and large scale network
systems.
It is unclear whether this job requires 5 years
of experience following receipt of the baccalaureate. For this reason,
the adjudicator should request that the petitioner provide a supplemental
statement clarifying whether the position requires five years of
post-baccalaureate experience that is truly progressive in nature. If the
supplemental statement establishes that the minimum qualifications for the
position require a member of the professions holding an advanced degree and,
assuming the beneficiary possesses these qualifications, the petition should be
approved.
Position 2: Senior Software Engineer
ETA 750 Item 14:
Education - MSCS or equiv.***.
Major Field of Study - Computer Science or related field.
Experience - 3 years in job offered or 3
years in related occupation of Software Engineer
ETA 750 Item 15:
C/C++ Programming; RDBMS Design ***Will consider
candidates with BSCS and 5 years experience as Software Engineer.
Similarly, it is unclear in this position as well
whether this job requires 5 years of postbaccalaureate experience as a Software
Engineer. Because of the additional requirement of a Master of Science in
Computer Science degree or its equivalent, however, the underlying petition may
be approvable. For this reason, the adjudicator should request that the
petitioner provide a supplemental statement clarifying whether the position
requires five years of postbaccalaureate experience that is truly progressive
in nature. If the supplemental statement establishes that the minimum
qualifications for the position require a member of the professions holding an
advanced degree and, assuming the beneficiary possesses these qualifications,
the petition should be approved.
Position 3: Software Engineer
ETA 750 Item 14:
Education - Master's or equivalent*
Major Field of Study**
Experience - 3 years in job offered or in
the related occupation of software engineer, systems engineer, or
programmer/analyst.
ETA 750 Item 15:
* Bachelor's degree in Computer Science,
Electrical Engineering or academic equivalent, and 5 years of progressive
experience will substitute for Master's degree in Computer Science and 3 years
of such experience.
** Computer Science, Electrical Engineering or
academic equivalent.
This position clearly requires a master's degree
or 5 years of progressive experience. Consequently, the position requires a
member of the professions holding an advanced degree. Again, assuming the
beneficiary possesses these qualifications, the underlying petition should be
approved.
Relevance of the alien beneficiary's actual
qualifications
The second and third examples raise an additional
question to be decided before approving some petitions -- those in which the
alien beneficiary does not actually have a Master's degree. The ETA-750 in each
of those cases requires that a candidate with a Master's degree must have three
years' experience, but that a baccalaureate with five years' experience is
acceptable. The question is whether the petitioner can include the alien's 5
years' postbaccalaureate progressive experience both to make the alien's
baccalaureate the equivalent of a Master's degree and to meet the three years'
experience that someone who actually does have a Master's degree must have. The
answer will depend on what the ETA-750 actually says. Note that the sample
ETA-750s do not require that the three years' experience must follow the receipt
of a Master's degree -- only that the applicant must have both the degree and
the experience. The ETA-750, therefore, does not preclude someone who just
received a Master's degree from qualifying for the position on the basis of
pre-Master's experience. By the same reasoning, someone with a baccalaureate
degree, and experience that makes it equivalent to a Master's, can qualify based
on the pre-Master's equivalency experience. If the beneficiary has a
baccalaureate with five years' progressive post baccalaureate experience, the
petition should be approved unless the ETA-750 clearly and explicitly requires
that the level of experience that a Master's applicant must have must be
post-magisterial experience.
If the ETA-750 does require that the experience
must have been post-magisterial experience, and the alien beneficiary just has
the baccalaureate plus five years' progressive postbaccalaureate, then the
alien beneficiary cannot meet the post-magisterial experience requirement. In
that case, the petition should be denied, not because the alien beneficiary is
not an advance degree professional, but because the alien does not meet the
actual qualifications as stated on the ETA-750. See K.R.K. Irvine, Inc., v.
Landon, 699 F.2d l006 (9th Cir. 1983); Matter of Wing's Tea House, 16
I & N Dec. 158 (INS 1977).
Where Do Adjudicators Find Help Concerning
EB-2 Petitions for Advanced Degree Professionals?
EB-2 petitions for advanced degree professionals
involving unusually complex or novel issues of law or fact can be certified to
the Administrative Appeals Office pursuant to 8 CFR 103.4. Questions concerning
this guidance can be addressed to Senior Adjudications Officer Craig Howie
through channels via cc:Mail.
cc:
HQOPS
HQPDI: Please amend the AFM in the next INSERTS release
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