Dealing with a "Bachelor's Degree or Equivalent" Formulation
One way to reconcile the inconsistency is to require the job to have a baccalaureate degree "or equivalent" on the labor certification. However, if the employer plans to rely on the "or equivalent" formula, he or she should define what is meant by equivalent experience. For instance, in one case, the petitioner, a computer consulting firm, sought to employ the beneficiary as a senior analyst/programmer. The Form ETA-750 indicated that the position required a bachelor's degree in computer science, computer communication systems, or related field, or equivalent experience. The director denied the petition because he determined that the petitioner had not established that the beneficiary had the equivalent of a U.S. baccalaureate degree in the enumerated fields. On appeal, counsel for petitioner submitted documentation to establish that the beneficiary had a combination of education and experience to meet the requirements set forth in ETA-750 prior to the filing date. The AAO dismissed the appeal, finding that the petitioner had not specified what was meant by "equivalent experience," and that the actual minimum requirements could have been clarified or changed before the ETA-750 was certified by the DOL [4].
Many practitioners define "or equivalent" according to the H-1B formulation-3 years of experience is equal to one year of education. However, relying on this formulation and substituting twelve years of experience for a US bachelor's degree may often be rejected by the DOL as being too restrictive as well as exceeding the educational and training requirements for the position [5]. Even if there is a way to justify this, DOL objects to the usage of "or equivalent" as the advertisement is targeted toward US workers and not foreign workers. If the bachelor "or equivalent" degree requirement can be included and defined in the labor certification application, an BCIS Service Center may be more amenable to approving the EB-3 petition. For example, in a petition for an "information engineering consultant," the petitioner, a provider of computer-related professional services, specifically stated in the ETA-750, that it would consider candidates without a B.S. degree in computer science that possess ten years of work experience. The AAO granted the petition, because the requirements on the labor certification included an alternative requirement of experience, which the beneficiary demonstrated [6]. It should be noted, however, that the ten years of experience relied upon as an alternative to a US degree falls short by two years under the "3 to 1" formula.
In the event that the BCIS continues to insist that the employee possess a straight foreign degree equivalent, without the work experience component, it can nevertheless be argued that he or she could qualify as an EB-3 skilled worker instead of a professional. For instance, in one case, the BCIS center director had denied the visa preference petition on grounds that the petitioner had not established that the proffered position required the services of a "member of the professions." On appeal, although the AAU found that the director correctly determined that a baccalaureate degree is not the minimum requirement for entry into the position, it held that the center director should have considered the petition under the "skilled worker" classification [7]. If the petition is ultimately approved, the consistency in the job requirements between the H-1B and permanent residency applications is maintained.
