* As the State Department predicted in the October 2004 Visa Bulletin, the cut-off date for EB-3 may arrive as early as January 2005. This prediction is more likely to happen once the November 2, 2004 national election is over as the immigration process may be released from various bottlenecks and fear factors that have caused the delay in adjudication of petitions and applications. Accordingly, in the employment-based immigrant community, the interest in the EB-2 labor certification and I-140 petition has substantially increased and there are a few things which the EB-2 aspirants must bear in mind before one considers this option. We will summary a few points here.
* In the labor certification application, employer must require either "a master's degree or equivalent" or alternatively a bachelor's degree with "5 years of progressive experience."
o In the labor certification application, "equivalent" means an equivalent "foreign" degree. Thus, unless the alien proves that he/she has a master's degree from a U.S. institution or equivalent degree from a foreign academic institution, he/she will not be able to file EB-2 I-140 petition.
o If the employer required a bachelor's degree or equivalent plus 5 years of progressive experience as an alternative to a master's degree requirement, the requirement of "a bachelor's degree or equivalent" can be proven only if he/she attained a "single" bachelor's degree either from a U.S. academic institution or a foreign academic institution. Bachelor's degree requires 16 years of education in academic schools. According to an AAO decision, combination of two or more academic degrees cannot satisfy a bachelor's degree or equivalent degree requirement. This decision is based on the specific language in the relevant immigration regulation which requires "a" bachelor's degree or "a" equiivalent foreign degree. Secondly, assuming that he/she is able to establish that he/she attained a 4-year bachelor's degree, the next threshold is to prove the "5-year progressive experience." Again the AAO decision requires that the experience must have been gained "after" attaining a bachelor's degree. Accordingly, any experience which was gained prior to attaining a bachelor's degree cannot satisfy the "5 year progressive experience" requirement.
* The threshold requirement for academic degree and experience requirement tends to be inconsistent in reality and in the USCIS practice between EB-2 and EB-3. Unlike the EB-2 petition, in the EB-3 requirement, it has been the USCIS HQ position (even though some adjudicators in some Service Centers disagree) that when a bachelor's degree or equivalent degree is required in the labor certification, the degree requirement can be established by a combination of one or more academic "degrees." When it comes to the requirement of experience, it also has been USCIS HQ position that the experience during the period of degree program can be counted to satisfy the experience requirement in the labor certification application if the degree requirement is satisfied. This is drastically contrasted to the experience requirement in the EB-2 requiring a bachelor's degree or 5 years of progressive experience that only counts "post-graduate" experiences. In the EB-2, the regulation uses a specific language of a bachelor's degree "followed by" the five years of progressive experience. For instance, if the labor certification application required a bachelor's degree or a master's degree, any experience during the degree program has been fairly liberally accepted by the USCIS. However, when an alternative requirement in lieu of a bachelor's degree or a master's degree is required in the labor certification application, the USCIS has interpreted the law more narrowly.
* The foregoing description clarifies that in the EB-2 cases, the definition of degree and experience requirement is more strict, restrictive, and narrow because of the specific languages in the regulation as opposed to the definition of degree and experience requirement for the EB-3 regulation.
* Finally, people are often confused between the H-1B professional degree or equivalent requirement and the green card degree or equivalent requiment. In the H-1B petitions, a four-year college degree can be satisfied by an evaluation of combination of education and experience or entirely on experience (3 yr experience = 1 year academic education), but in the green card process, unless the labor certification specifically states that the employer will accept such combination, experience cannot be counted to prove a degree requirement. Again, the requirement of bachelor's degree or "equivalent" in the labor certification application can be established only by academic education and degree (in EB-2) or degrees (EB-3). Here, the language "equivalent" in the labor certification application is taken by the USCIS as a "foreign" degree and not combination of education and experience. Additionally, in the EB-2 petition, even if the labor certification application stated that the employer would accept a combination of education and experience in lieu of the bachelor's degree for the purpose of establishing the requirement of "a bachelor's degree" followed by five years of progressive requirement, it would not comfort with the specific language in the regulation and the USCIS may not accept such proof to meet the threshold qualification requirement for the EB-2 petition. In the EB-2 labor certification application, it is extremely important that the education and experience requirements are "carefully" drafted in the labor certification application. Otherwise, people would experience a nightmare or denial of EB-2 petition at the stage of USCIS I-140 petition proceedings after wasting a tremendous amount of time to obtain a labor certification application.
* In the labor certification application, employer must require either "a master's degree or equivalent" or alternatively a bachelor's degree with "5 years of progressive experience."
o In the labor certification application, "equivalent" means an equivalent "foreign" degree. Thus, unless the alien proves that he/she has a master's degree from a U.S. institution or equivalent degree from a foreign academic institution, he/she will not be able to file EB-2 I-140 petition.
o If the employer required a bachelor's degree or equivalent plus 5 years of progressive experience as an alternative to a master's degree requirement, the requirement of "a bachelor's degree or equivalent" can be proven only if he/she attained a "single" bachelor's degree either from a U.S. academic institution or a foreign academic institution. Bachelor's degree requires 16 years of education in academic schools. According to an AAO decision, combination of two or more academic degrees cannot satisfy a bachelor's degree or equivalent degree requirement. This decision is based on the specific language in the relevant immigration regulation which requires "a" bachelor's degree or "a" equiivalent foreign degree. Secondly, assuming that he/she is able to establish that he/she attained a 4-year bachelor's degree, the next threshold is to prove the "5-year progressive experience." Again the AAO decision requires that the experience must have been gained "after" attaining a bachelor's degree. Accordingly, any experience which was gained prior to attaining a bachelor's degree cannot satisfy the "5 year progressive experience" requirement.
* The threshold requirement for academic degree and experience requirement tends to be inconsistent in reality and in the USCIS practice between EB-2 and EB-3. Unlike the EB-2 petition, in the EB-3 requirement, it has been the USCIS HQ position (even though some adjudicators in some Service Centers disagree) that when a bachelor's degree or equivalent degree is required in the labor certification, the degree requirement can be established by a combination of one or more academic "degrees." When it comes to the requirement of experience, it also has been USCIS HQ position that the experience during the period of degree program can be counted to satisfy the experience requirement in the labor certification application if the degree requirement is satisfied. This is drastically contrasted to the experience requirement in the EB-2 requiring a bachelor's degree or 5 years of progressive experience that only counts "post-graduate" experiences. In the EB-2, the regulation uses a specific language of a bachelor's degree "followed by" the five years of progressive experience. For instance, if the labor certification application required a bachelor's degree or a master's degree, any experience during the degree program has been fairly liberally accepted by the USCIS. However, when an alternative requirement in lieu of a bachelor's degree or a master's degree is required in the labor certification application, the USCIS has interpreted the law more narrowly.
* The foregoing description clarifies that in the EB-2 cases, the definition of degree and experience requirement is more strict, restrictive, and narrow because of the specific languages in the regulation as opposed to the definition of degree and experience requirement for the EB-3 regulation.
* Finally, people are often confused between the H-1B professional degree or equivalent requirement and the green card degree or equivalent requiment. In the H-1B petitions, a four-year college degree can be satisfied by an evaluation of combination of education and experience or entirely on experience (3 yr experience = 1 year academic education), but in the green card process, unless the labor certification specifically states that the employer will accept such combination, experience cannot be counted to prove a degree requirement. Again, the requirement of bachelor's degree or "equivalent" in the labor certification application can be established only by academic education and degree (in EB-2) or degrees (EB-3). Here, the language "equivalent" in the labor certification application is taken by the USCIS as a "foreign" degree and not combination of education and experience. Additionally, in the EB-2 petition, even if the labor certification application stated that the employer would accept a combination of education and experience in lieu of the bachelor's degree for the purpose of establishing the requirement of "a bachelor's degree" followed by five years of progressive requirement, it would not comfort with the specific language in the regulation and the USCIS may not accept such proof to meet the threshold qualification requirement for the EB-2 petition. In the EB-2 labor certification application, it is extremely important that the education and experience requirements are "carefully" drafted in the labor certification application. Otherwise, people would experience a nightmare or denial of EB-2 petition at the stage of USCIS I-140 petition proceedings after wasting a tremendous amount of time to obtain a labor certification application.