Yates Memorandum of March 20, 2000 on Acceptable EB-2 Labor Certification Application
As we reported earlier, currently EB-3 numbers are heavily backlogged for China, India, and the Philippines. The State Department predicts the situation may get worse for China and India EB-3 numbers in the future. Moreover, EB-3 numbers may retrogress worldwide as early as the end of the year. Accordingly, the employment-community is increasing directing their attentions to the rules on the EB-2 labor certification applications which are acceptable by the USCIS for the purpose of EB-2 I-140 petitions.
# This rule is articulated and elaborated in details by Mr. William Yates in his memorandum on this issues dated March 20, 2000 and the memorandum was afterwards published in the federal register on Mary 27, 2000. This rule indicates that the job does not have to require a master's degree to make the job a EB-2 case. The job that requires a bachelor's degree plus five years of experience standing alone meets the EB-2 requirement. In drafting the PERM application, this rule is very important because most of the PERM applications that required a master's degree and as an alternative, required a bachelor's degree plus five years of experience have been denied by the DOL if the alien was qualified by the alternative qualification requirement. In other words, when an alien does not have a master's degree, the PERM application should not even mention a requirement of master's degree.
# It is time for people to revisit our posting on March 27, 2000 that summarized the Yates' March 20, 2000 as follows:
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"Updated 03/27/00: At Last! EB-2 Advanced Degree Equivalency INS HQ Memorandum Released!!
INS HQ at last released the long-awaited memorandum settling all the puzzles relating to the "equivalent" to Master's degree issues for the EB-2 qualification in connection with ETA 750 Part A. Good news. It has accepted all the liberal views, overriding the narrow and conservative views of some of the Service Centers.
This memorandum is relevant to those who do not have a master's degree but attempt to make EB-2 case. The following rules clarify how BS or BA people can make EB-2 case when employer requires 5 or more years of work experience. The following summary requires the reader's understanding of the issues surrounding Master's equivalent issues.
Summary:
(1)INS cannot reject EB-2 petition where "progressive" language is not written in ETA 750, Item 14 of ETA 750 Part A.
(2)Each of the following option is acceptable for EB-2, each standing alone:
(a-1) Item 14: Education - M.S., M.A., or Equivalent; Experience - 0
(a) Item 14: Education - B.S. (or foreign equiv); Experience - 5 years job offered or related occupation
(b) Item 14: Education - M.S.or equiv**; Experience - 3 years job offered or related occupation, and in Item 15: **Will consider candidates with BS and 5 yrs experience.
(c) Item 14: Education - M.S. or equiv**; Experience - 3 years job offered or related occupation, and in Item 15: Bachelor's degree in XXX or academic equivalent, and 5 years of progressive experience will substitute for Master's degree in XXX and 3 years of such experience.
Revolutionary rule: "Unless the ETA 750 clearly and explicitly requires that the level of experience that a Master's applicant must have must be post-magisterial experience," in both (b) and (c) above, the applicant does not have to prove BS+5 yrs+3 yrs exp. The 3 years of experience requirement can include the 3 years which are used to make up "5 years." In other words, simply BS+5 yrs of exp requirement in (b) and (c) above makes it equivalent to MS+ 3 yrs exp requirement, unless additional experience is clearly and explicitly required by the employer in ETA 750 Item 14!!! Kudos!!!
By the same token, unless clearly and explicitly required, alien who has just earned MS with no post-MS experience can meet (b) or (c) if the alien gained such experience before MS.
Salute to the INS HQ!"
This memorandum is still valid and good!
Click here for
Yates Memorandum
source: immigration-law
