In New Adopted Decision, USCIS Clarifies How to Evaluate Advanced Degree Requirements in EB-2 Applications
According to an adopted policy decision, U.S. Citizenship and Immigration Services (USCIS) adjudicators of employment-based, second-preference (EB-2) petitions must now consider whether or not prospective beneficiaries have satisfied all requirements at the time of completing a degree program, and not merely consider when a formal diploma is awarded, for purposes of calculating work experience. The clarified policy stems from a decision by the Administrative Appeals Office (AAO) of USCIS in Matter of O-A-, Inc.
EB-2 visas are reserved for foreign nationals with advanced degrees, affording these aliens a pathway to lawful permanent residence by virtue of their employment in the U.S. as “advanced degree professionals.” In lieu of a master’s degree or higher, aliens remain eligible under this category if they have a bachelor’s degree and five years of progressive post-baccalaureate work experience; the combination of the two is generally considered the equivalent of an advanced degree. A prospective EB-2 beneficiary must have completed all substantive requirements by the date a petitioning employer files a labor certification application, which is the first step in the EB-2 application process.
The dispute at the center of Matter of O-A-, Inc. involved a computer software company whose petition for a software developer from India under the EB-2 classification had been denied. While the prospective beneficiary possessed a bachelor’s degree, the Director of the Nebraska Service Center concluded that her total progressive post-baccalaureate work experience fell short of the five-year minimum, rendering her ineligible for an EB-2. The company countered that USCIS had inappropriately considered the date the beneficiary received her formal diploma, not the date she finished her bachelor’s degree program and obtained a provisional certificate, and as a result, had shortchanged the amount of progressive post-baccalaureate work experience she had actually accrued.
According to the AAO, the issue in the appeal was not determining whether the alien’s degree or work experience substantively satisfied EB-2 requirements, but rather determining when her degree was conferred in order to quantify her work experience.
As noted, the Nebraska Service Center used the date the beneficiary received her diploma, finding that the alien’s total number of years of postgraduate work experience after this date amounted to four years and eight months. But the beneficiary had actually completed her degree program and was given a provisional certificate nearly a year before receiving her formal diploma. By using this date, as the company did, the alien’s total postgrad work experience surpassed the five-year minimum.
In delving into the details of the beneficiary’s degree program, the AAO found that she had in fact completed her bachelor’s degree on the date she received a provisional certificate. Accordingly, the appellate body ruled in favor of the petitioner, finding that the foreign national had met the minimum education and work experience requirements under the EB-2 classification.
The AAO broadened its ruling to apply to EB-2 adjudication in general. Determining when a beneficiary’s degree could be deemed complete was central to rendering its decision. Starting today, USCIS adjudicators are required to conduct case-specific analyses along the lines of AAO’s process in the Matter of O-A-, Inc. in order to evaluate beneficiaries’ fulfillment of minimum education and work experience requirements. It will be the petitioner’s burden of proof to demonstrate why a provisional certificate or other documentation instead of a degree or diploma evidences completion of a four-year degree. But adjudicators must from now on consider such evidence.
Generally speaking, the adopted policy decision redounds to the favor of petitioning employers and prospective EB-2 beneficiaries, who may now be able to count more time in the number of years of postgrad work experience they’ve accumulated since they are no longer wedded to the date they receive a formal diploma. Practically speaking, given the severe visa backlogs in the EB-2 category, there’s likely little in the way of drastic changes to expect in the composition of the applicant pool.
If you’re interested in filing an immigrant petition under the EB-2 category, you should first consult with experienced immigration attorneys. At Zhang and Associates, we’ve spent the last two decades specializing in employment-based immigration. Our firm is able to assist petitioning employers in calculating the number of years of progressive work experience their prospective beneficiaries have accrued, and to help aliens collect evidence regarding completion of their degrees that complies with the Matter of O-A-, Inc. ruling.
Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017
At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.
Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).
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