murthy.com bulletin
the following topic is from this weeks murthy.com bulletin, which i think gives some hope to i-140 filers with 3 years degree.
4. Oregon Court on Combination of Education and/or Experience in I-140 Petition
The United States District Court for the District of Oregon issued a noteworthy opinion and order in an I-140 petition case in early November 2005. The matter at issue is what is typically referred to as a "combined or combination degree" case. The Court ruled that the particular I-140 petition must be approved by the U.S. Citizenship and Immigration Services (USCIS) based on the person's possession of a combination of educational credentials that equate to a U.S. degree. The decision in this case is currently not absolute authority for any purpose beyond this particular case. However, it is a beneficial interpretation of the law regarding "combination degrees or combination education" in the I-140 immigrant petition process in an employment-based green card process. It benefits employers and foreign nationals since the USCIS has traditionally taken a narrow view of a combination of educational courses or degrees.
Case Background
In this case, the I-140 petition had been denied by the Nebraska Service Center (NSC) because the beneficiary did not have a singular degree that met the requirements for the position offered in the labor certification. The petitioner had appealed the case to the Administrative Appeals Office (AAO) three times, arguing that the case could be approved under the employment-based, third preference (EB3) category for a skilled worker position. The AAO denied the appeal each time. Finally, because the petitioner had exhausted all administrative remedies, relief was sought in the federal court system in the United States District Court for the District of Oregon.
Ruling of the Oregon Court
The Oregon Court agreed with the petitioner that the I-140 petition could and should be reviewed for qualification in the EB3 skilled worker category, and not just the EB3 bachelor's degree (professional) category. The logic for this is that the I-140 petition form does not ask petitioners to specify which of the two types of EB3 category is being requested.
The Oregon Court also agreed with the petitioner with respect to its reading of the labor certification's required education of "B.A. or equivalent." The petitioner argued that the term "B.A. or equivalent" means "B.A. or the equivalent of a B.A." and that the equivalent of a B.A. could be achieved through a combination of education and experience. The Oregon Court found that this was a valid interpretation of the "or equivalent" language, since the petitioner had created the requirements and the U.S. Department of Labor (DOL) had not made any findings that the requirements were harmful to U.S. workers at the labor certification stage.
The Oregon Court found that the USCIS's interpretation that the "B.A. or equivalent" language meant "B.A. or equivalent foreign degree" was arbitrary, capricious, and an abuse of discretion. The Court reasoned that Congress did not put anything into the law that requires the beneficiary to have an actual degree for the EB3 skilled worker category. They further determined that the USCIS cannot impute its own interpretation of the employer's term "B.A. or the equivalent" since it is the petitioner's job to state the requirements for the job and the DOL's job to determine if there are any issues with these stated requirements. The Oregon Court determined that only the DOL, not the USCIS, could dispute the meaning of the terms that the petitioner established in the labor certification application. For all of these reasons, the Oregon Court ordered the USCIS to approve the I-140 petition.
Conclusion
As stated, the finding is currently only binding in this particular case because it is an unpublished opinion. If the case is published at a future date, then it will only be binding on cases filed within the jurisdiction of the United States District Court for the District of Oregon. There is no guarantee that other courts will make the same finding or use the exact interpretation, though it certainly helps that an impartial judge in a court in Oregon has found that the language of "equivalent" on the Labor Certification and the I-140 petition should result in the USCIS allowing for either education or experience to equate to the degree, and for the USCIS to approve the I-140 petition. Ultimately, filing and then pursuing a case to a favorable decision in a federal district court takes a great deal of patience. The labor certification in this case was filed in 1996, the I-140 petition was filed in 1998, and the resolution has only finally occurred in November 2005. So an investment of finances and time is required in order to obtain favorable determinations such as this.
. I am so depressed and so many things happened after my 140 denial. Thanks for you encouragement.