Constructing a Successful EB-2 Immigrant Petition

Due to significant immigration backlogs in the EB-3 visa category, most employers I represent in Columbus, Ohio would like to file their PERM labor certification in the EB-2 preference process. This article is intended to describe the challenges facing employers and some immigration practitioners in trying to qualify certain professional foreign nationals possessing foreign degrees in the second preference immigrant visa process.

One of the most challenging issues facing employers wishing to sponsor the immigration of their foreign national employees in Columbus Ohio or anywhere for that matter, through the PERM program is whether they can place them in the EB-2 category thereby significantly expediting their permanent residence processing. The EB-2 immigration process is the second highest employment-based immigrant category. Under today’s processing times, a foreign national could conceivably obtain her permanent residence through the PERM process in a year, give or take, if she is able to successfully have her case placed in the EB-2 preference category. Citizens of India and China, however, do benefit substantially from the EB-2 process, although they remain significantly backlogged behind other nationals. Suffice it to say that the EB-2 category is the most preferred employment-based preference process in the PERM labor certification process.

A foreign national qualifies to have her PERM based permanent residence process placed in the EB-2 preference category if three things occur:

1. PERM is an “Advanced Degree which is defined as a position requiring either a Master’s Degree or a Bachelor’s Degree plus five years experience;
2. The foreign national possesses such educational and/or professional credentials; and 3. The foreign national is not displacing equally qualifying US worker in the geographic area.

The PERM process itself fulfills the third requirement; hence the biggest challenge foreign nationals and their employers face in the PERM process is whether they can satisfy the first two enumerated requirements above.

All positions are not created equal! This means that not every position imaginable requires a master’s degree or a bachelor’s degree for that purpose. If we use a silly example to illustrate this notion, we would say that the position of a “janitor” does not require a bachelor’s degree. On the other hand, the position of a research associate, easily requires a PhD. For that reason, the US Department of Labor established several references and criteria to measure the “difficulty” of each position and to determine what the reasonable minimum requirements are. Such references include the Dictionary of Occupational Titles, and the O*Net system. These systems define the scholastic vocational preparation (known as the SVP index) level required for each type of position.

Hence, if an employer desired to require a master’s degree for a particular position, he or she must them make certain that the particular position’s “difficulty” criteria match pursuant to the aforementioned USDOL tools and systems. For instance, 54% of computer software engineer positions require a bachelor’s degree while 23% require a master’s degree.

If an employer desired to exceed what is considered “normal” minimum requirements for a particular position pursuant to the US Department of Labor standards, it may be required to show evidence that such increase in the minimum requirements is necessary for the employer to conduct its business in an ordinary manner. In other words, the employer requires its employees occupying the position giving rise to the PERM application to possess educational and/or experience credentials higher than what is considered customary due to the employer’s intricate business requirements. This type of evidence is named a “business necessity” letter.

An employer desirous to place its foreign national in an EB-2 Based PERM process must make certain that the position in question is one recognized having a difficulty level requiring an advanced degree. If the USDOL standards for a particular position do not support such finding, the employer will have to justify the need based on the nature of its business by documenting a “business necessity” letter as explained herein.

Many attorneys confuse this rule which leads to catastrophic consequences to their clients. A foreign master’s degree even if followed by a foreign bachelor’s degree may not necessarily lead to a determination of equivalency for US Master’s Degree by the USCIS. Even in the presence of a detained credential evaluation by a reputable company, the USCIS considers such evaluations not to be primary evidence; rather it views them as advisory in nature. The USCIS implements a 6 year and a “single source” rule in making a preliminary evaluation as to whether the foreign national possesses the equivalent to a master’s degree. That is to say, if the foreign national achieved a three-year bachelor’s degree followed by a three-year master’s degree, then the resulting evaluation would equate to a master’s degree equivalent to a US master’s degree from an expedited university. The single rule says that in achieving each degree, the foreign national must had acquired each from a single source educational institution.

Here some examples worthy of consideration:

In this scenario, the foreign national achieved a three-year bachelor’s degree from a foreign institution. After that, he possessed a one-year diploma from another institution. You can find out that this example violates the “single source” rule in that the equivalent 4-year education will not equate a four-year bachelor’s degree by a US accredited intuition for the purpose of the EB-2 program. The confusing part is that such combination of education will indeed be equivalent to a bachelor’s degree for H-1B visa purposes, but not for EB-2 petitions. The aforementioned conflict confuses most immigration practitioners, foreign nationals and employers alike. The reason for this strange dichotomy lies in bizarre regulatory interpretation by the USCIS backed by numerous decisions by the Administrative Appeals Office. Suffice it to say that one should understand USCIS interpretations but not the rationale behind such interpretation as they are convoluted and certainly defy common sense.

This is another example of a situation where the foreign national may have achieved a 4-year bachelors program from one university followed by a two-year master’s program from the same or another university. It appears that this example may fulfill the “single source” rule in that in both degrees, each is obtained from a single source institution. However, this example violates the 6-year rule in that both degrees fall short of 6 educational years required to achieve a US master’s degree and hence will not suffice as basis for an EB-2 petition.

It is worthy to note that some educational programs are very intensive in that a 5-year program in one country may very well equate to a six-year program in the US. That is to say, in some situations, a five-year educational classroom course program could very take a US student six years to complete. In a situation as such, it is important to have sufficient documentary evidence to prove such fact in order to argue to the USCIS that such educational program is, in fact, a six-year course completed in 5 years. It is worthy to note that the USCIS is very skeptical of such claim and a case like this must be backed by strong evidence showing that the foreign national in fact completed a 6-year program in 5 years.

Hence, it is our conclusion that generally speaking a three-year bachelor’s degree followed by a 2-year master’s degree will not qualify for an EB-2.

Below you can find a list of acceptable foreign degree combinations what will pass EB-2 muster:

• Three-year bachelor’s degree followed by a three-year master’s degree.
• Four-year bachelor’s degree followed by a two-year master’s degree.
• Five-year bachelor’s degree followed by a two-year master’s degree.

All of the above enumerated examples will yield a credential evaluation that will be accepted by the USCIS for EB-2 purposes.

The EB-2 area is wrought with confusing and convoluted regulatory interpretations on the part of the USCIS and the AAO. The Law Firm of Shihab & Associates has the technical expertise that will assist the foreign national and the employee to safely navigate through these murky waters. If you have a complex PERM case, contact the attorneys at The Law Firm of Shihab & Associates for an initial free evaluation. Our attorneys are experienced and well equipped to take your case successfully. They have represented thousands of clients successfully before the US Department of Labor, the US Citizenship and Immigration Service and various other tribunals successfully.