INS 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
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

Trusted & Highly Recommended
See What Our Clients Have to Say-
“My green card process was smooth. Thank you Verma for all the help you provide during the process.”
- Chacha -
“They were always available through phone and responded to my emails quickly.”
- Madhuri B. -
“The staff at Verma Law firm were prompt and helped with all the documentation needed for my mom's immigrant visa application.”
- Upendra
-
Customer Service
With us, you will get client-focused, personalized service. You are not just another case to us.
-
Payment Plans
We charge a flat fee for all cases, and offer a payment plan to those who need it.
-
Convenient Locations
Our offices are conveniently located in San Jose and San Francisco.
-
Experience
Our lead attorney not only has over 23 years of experience, but is also an immigrant himself.