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Hernandez memo for I-140
- Thread starter bcis
- Start date
any one got the Copy of this letter
Proving that the beneficiary of an employment based immigrant petition, Form I-140, has the US equivalent of a foreign degree has always been a nightmare. Under the employment-based second preference (EB-2), the alien beneficiary of an I-140 petition has to establish that he or she has an advanced degree. Under 8 C.F.R. Section 204.5(k)(2), “advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate degree. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.”
INS officers were interpreting the regulation to mean only a foreign equivalent of United States baccalaureate degree for qualifying under the employment-based second preference. Thus, where an alien beneficiary presented a three-year foreign degree combined with a diploma, INS officers rejected such credentials even though they constituted the equivalent of a US degree.
On January 7, 2003, Efren Hernandez III, Director, Business and Trade Services, INS, responded to a query from attorney Aron Finkelstein, indicating that a foreign degree equating to a US degree need not have been in the form of a single degree. The letter also indicated that “five years of progressive experience” for advanced degree EB-2 equivalency can be obtained either in the US or abroad.
Although such letters are not binding, it would be able to influence INS officers who have been rejecting credential evaluations and finding that foreign degrees resulting from the combination of more than one educational program do not equate to a US degree.
While this letter pertains to I-140 petitions under EB-2, it should also be able to positively impact the adjudications of employment-based I-140 petitions under the employment-based third preference (EB-3).
8 C.F.R. Section 204.5(l)(3)(C) defines "professionals” under the third preference as one who “holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions.”
One would hope that an alien presenting a combination of one educational program under the employment-based third preference for professionals would also be able to establish that he or she has a “foreign equivalent degree.”
Finally, even if the INS has adopted a more generous view of accepting a foreign equivalent degree through multiple education programs, there is still no acceptance of establishing a foreign equivalent degree based on only work experience or a combination of education and work experience. While such a combination may be permissible to establish a foreign degree equivalent for H-1B visa purposes, an alien beneficiary can only establish foreign degree equivalency under an EB-2 or EB-3 petition through education.
Proving that the beneficiary of an employment based immigrant petition, Form I-140, has the US equivalent of a foreign degree has always been a nightmare. Under the employment-based second preference (EB-2), the alien beneficiary of an I-140 petition has to establish that he or she has an advanced degree. Under 8 C.F.R. Section 204.5(k)(2), “advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate degree. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.”
INS officers were interpreting the regulation to mean only a foreign equivalent of United States baccalaureate degree for qualifying under the employment-based second preference. Thus, where an alien beneficiary presented a three-year foreign degree combined with a diploma, INS officers rejected such credentials even though they constituted the equivalent of a US degree.
On January 7, 2003, Efren Hernandez III, Director, Business and Trade Services, INS, responded to a query from attorney Aron Finkelstein, indicating that a foreign degree equating to a US degree need not have been in the form of a single degree. The letter also indicated that “five years of progressive experience” for advanced degree EB-2 equivalency can be obtained either in the US or abroad.
Although such letters are not binding, it would be able to influence INS officers who have been rejecting credential evaluations and finding that foreign degrees resulting from the combination of more than one educational program do not equate to a US degree.
While this letter pertains to I-140 petitions under EB-2, it should also be able to positively impact the adjudications of employment-based I-140 petitions under the employment-based third preference (EB-3).
8 C.F.R. Section 204.5(l)(3)(C) defines "professionals” under the third preference as one who “holds a United States baccalaureate degree or a foreign equivalent degree and by evidence that the alien is a member of the professions.”
One would hope that an alien presenting a combination of one educational program under the employment-based third preference for professionals would also be able to establish that he or she has a “foreign equivalent degree.”
Finally, even if the INS has adopted a more generous view of accepting a foreign equivalent degree through multiple education programs, there is still no acceptance of establishing a foreign equivalent degree based on only work experience or a combination of education and work experience. While such a combination may be permissible to establish a foreign degree equivalent for H-1B visa purposes, an alien beneficiary can only establish foreign degree equivalency under an EB-2 or EB-3 petition through education.
bcis,
Sorry to hear about your rejection. Before you use this letter, check this out -
http://www.immigrationportal.com/showthread.php?t=99061
there's a document with minutes of meeting where NSC claims the letter is not binding on them.
Sorry to hear about your rejection. Before you use this letter, check this out -
http://www.immigrationportal.com/showthread.php?t=99061
there's a document with minutes of meeting where NSC claims the letter is not binding on them.