Qualification Requirement for "Advanced Degree" for EB-2 Immigrant Petition

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Source: http://www.immigration-law.com

- 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."

a) 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.

b) 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 plus 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.

 

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Types of Occupations Fit for EB-2 Labor Certification

- For an employer to file a labor certification application for EB-2, the employer has to determine whether or not the job is a kind of occupation which normally requires such education and experience. Employer cannot arbitrarily require such education and experfience when the industry does not normally require such education and experience for such job. The general standards for educational/experience requirement are set forth in the Department of Labor's Dictionary of Occupational Titles (DOT). Accordingly, should an employer require more education or experience than that which is normally required for such occupation under the DOT, the State labor certification office will determine such requirement as an "unduly restrictive requirement" and challenge such requirement. Such challenge can be overcome by so-called "business necessity," but the starting point for an employer to determine what kind of education or experience it should require in the labor certification application is the DOT.

- Generally labor department officials uses Specific Vocational Preparation (SVP) guidelines which show years of vocational preparation required for each occupation. SVP 7 is an occupation that normally requires 4 years of vocational preparation. Four year bachelor degree is considered 2 years for this purpose since the first years do not involve a specialty course education. Accordingly, for the SVP 7 occupations in the DOT, employers normally cannot require more than a bachelor's degree with 2 years of experience or four years of experience with high school diploma. Master's degree is considered 2 years since the graduate education involves entirely specialty courses. Thus for SVP 7 occupation, in some occupations employer can require a master's degree without any experience. No experience can be required in the master's degree requirement case since bachelor's degree (2) + master's degree (2) constitutes 4 and any experience requirement will exceed the 4-year maximum for the SVP 7 occupations. However, in reality, SVP 7 occupation is generally not an occupation that normally requires a master's degree. If employer requires a master's degree without an experience for such occupation, the labor department can still challenge such requirement for the SVP 7 occupation based on another criteria in the DOT. It is GED (General Education Development) level for each occupation. It includes three factors: Level of Reasoning required, Level of Mathematical knowledge, and Level of Language development in reading, writing, etc. The highest level is 6. In occupation that requires a Ph.D. degree normally has Level 6 in all these three criteria as we can imagine. If the Level is low for these three criteria, the DOT assumes that it should not require an advanced education. So, going back to the discussion of SVP 7 occupation, unless the DOT shows fairly high-level of GED for the occupation, the labor department can challenge a master's degree requirement as an unduly restrictive requirement.

- Generally, employer requires a master's degree for a job when the DOT shows it is a SVP 8 occupation that usually requires from over 4 years upto 10 years of vocational preparation time. Otherwise, the employer has to prove a "business necessity" to require a master's degree for the SVP 7 occupations. Proving business necessity is not an easy task."

- If the employer wants to file a EB-2 labor certification application using an alternative requirement of "a bachelor's degree plus 5 years of progressive experience," it exceeds the maximum 4-year preparation time for SVP 7 occupations. Thus unless the employer can justify for such excessive requirement by business necessity, such requirement will be denied for the SVP 7 occupation. It is thus general understanding among the immigration practitioners that the occupations for such EB-2 labor certification application should fall under SVP 8 categories. The GED level for SVP 8 is fairly high, particularly in the "reasoning" capability and the "mathematical logical or scientific training, justifying an advanced degree requirement.

- This information is posted because the immigrant community often misunderstands that EB-2 is something an employer can determine and require arbitrarily regardless of the nature of the occupation. This information is also intended to educate the immigrant community that the EB-2 employment-based immigration proceeding must pass two separate tests: One is the test in the labor certification process establishing that the EB-2 type of education and experience requirement in the labor certification application is those which are normally required in the industry and not unduly restrictive requirement or justified, even if unduly restrictive, because of business necessity. Once the employer passes this test at the level of the U.S. Department of Labor, the employer has to pass the second test in the I-140 immigrant proceeding at the level of the USCIS. We elaborated the second test in another posting immediately preceding this posting.

 

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What Determines Occupation Classification in the Labor Certification Process?

- Relating to the yesterday's discussion on the EB-2, there is another common misunderstanding that the job title the employer uses will determine the occuaptional classification in the DOT and SVP. From the perspective of the labor department, whatever job title employer uses in the labor certification application does not determine the occupational classification. It is not the job title but the description of the duties and responsibility for the position that controls the occupational classification. It is thus the labor department that assigns and determines the occupational classification based on the given job description in the labor certification application and not the employer. The labor department's determination is shown in a box right bottom corner of the ETA 750 Part A of the application form. In a substantial number of cases, the occupational classification determined by the labor department is completely different from the job titile which the employer used in the application.

- The labor department usually ignores the job title which is given by the employer in the application form and starts reviewing and analyzing the job description in the form, which is Item 13 in the ETA 750 Part A. They review and analyze the description in two aspects. One is the duties and the other is the responsibility of the position. Obviously the duties of the position determines classification of the occupation and responsibility determines the level of independent judgment the position requires. Duties usually determines the nature of the occupation and SVP and certain occupation almost automatically gets certain occupational classification and higher SVP assignment even if the position does not require any work experience. However, when the duties match with a certain occupation in the DOL which has a borderline SVP, the description of the responsibility of the position plays an important role for the labor department to determine the education and years of experience required for the position. Accordingly, employers often pass the labor department test for EB-2 for a certain position which falls under SVP 7 occupational classification if the description indicates a heavy responsibility, especially when the employer uses for EB-2 an alternative qualification requirement of "a bachelor's degree plus 5 years of progressive experience,"rather than a master's degree. The amount of salary the employer offers also influences the local labor department determination of occupational titles in some cases, especially private industry employment.

- People often see certain employers who give every employees a fancy job title when they are employed. For instance, there were plenty of employers that one time gave a job title of "Software Engineer" to every IT position in the company to compensate for paying an extremely low salary. Consequently, those who were just coming out of a school with an undergraduate degree in IT related specialty carried a business card and resume with the job title of Software Engineer or Database Administrator. This worked for the purpose of their resumes but not for the labor certification process! This also worked for the H-1B purpose since the immigration services pay less attention to the level of occupation inasmuch as the qualification requirement for the position passes the threshold of "bachelor's degree or equivalent background." Again, it does not work for the labor certification process as there is no such threshold and the labor department has to determine the nature and the level of position without any threshold. The employer's job title for the employees can sometimes fool the immigration officials but not the labor department officials. Sometimes inexperienced labor department officials miss what they are supposed to do under the law and neglect the job of review and analysis of the postion description from the perspective of the legal requirement and freely pass higher level job title when the job in fact is a low level occupation in terms of the occupational classification and SVP level. One cannot sit on such chance of inadvertent determination of the occupational classification by a labor department official. The employer should rather study very carefully the nature, the duties, and the responsibility of the position before they start the labor certification process such that they do their own part of duties under the labor certification rules and laws!

 

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EB-2 Labor Certification Application and Dissimilar Occupation Exception Rule to Experience Gained with Employer

Nowadays, the labor certification application is often filed with the requirement of master's degree or alternatively bachelor's degree with 5 years of progressive experience to deal with the potential cutoff date of EB-3 visa numbers. This site discussed previously various issues involving EB-2 filing. Today, we want to discuss the issue of proving 5 years of progressive experience. Under the labor certification rule, any experience gained with the sponsoring employer is not considered "experience" for the purpose of establishing years of experience. Accordingly, in majority of the cases, the alien beneficiary must come up with a proof of the required experience gained with another employers that are not related to the sponsoring employer and prior to being hired by the sponsoring employer. In the majority of cases, the sponsoring employer would not file such application unless the employer is assured that the alien beneficiary had such experience.


However, there are exceptions to the rule that the experience gained with the sponsoring employer is not considered experience. One of these exceptions is the rule of the experience in "dissimilar" occupations. This "dissimilar rule" is comfortably used to prove experience but not to prove education equivalency. For instance, if one gained with the sponsoring employer in an occupation which is related to the occupation but under the DOT it is a completely different occupation, such prior experience can be taken as a proof of experience for the purpose of proving the "experience" which is required in the labor certification application. Another example is a promotion to a manager position, again which is completely a different classification in the DOT. From the standpoint of the labor certification application, it is thus extremely important that employer states in the application that the employer will accept "such" related occupation. The alternative experience in this context should inherently be related to the job offered but "dissimilar" occupation. Accordingly, unless the labor certification application requires a related occupation experience, the exception rule of dissimilar occupation will fail to establish the qualification requirement for the labor certification application through the experience gained with the sponsoring employer. Besides under the dissimilar experience rule, the only experience gained with the sponsoring employer that can be used in the previous experience "in dissimilar occupation." Thus if the labor certification application required three years of experience and the alien gained two years of experience with the prior employers or with the current sponsoring employer in "dissimilar occupation" and gained additional one year of experience with the occupational classification with the sponsoring employer which is the subject occupation of the labor certification application, the alien is considered to have failed to prove the three-year work experience since part of the experience gained with the sponsoring employer is the same occupation which is the subject of the labor certification application and does not fall under the "dissimilar" occupation exception rule. This point was confirmed by one of the recent labor certification application case which was appealed to the BALCA, the appeal agency of the labor certification application, in September 2004. Additionally, there is another issue which has yet to be revolved. It is whether or not the experience in dissimilar occupation can be used to establish the five year progressive years of experience in the specialty which is the regulatory language, regardless of the same employer or different employer. If the dissimilar occupation is established by years of work experience in the same occupation prior to promotion to a "managerial" position (vertical change of occupations) which is the subject job for the labor certification application, arguably the employer may be able to use the dissimilar rule. The problem involves a situation which involves horizontal change of occupations at the same level in the responsibility which are considered "related" but "dissimilar." For instance, the change from process engineer or industrial engineer to manufacturing engineer. Conceptually, the case will face a problem to use the dissimilar rule in this context. The issue has yet to be resolved.