Favorable Federal Court Ruling On EB-3 Equivalency Degree Issue
When a foreign national holds a degree from a foreign country, it
must be established that he or she has an equivalency of a US
bachelor’s degree in the context of an H-1B nonimmigrant visa petition
and an employment-based immigrant visa petition (Form I-140). Equivalency is
defined differently under both these petitions.
To establish the equivalency of a bachelor’s degree for an H-1B
petition, the regulations allow the foreign national to combine education
and work experience to establish the equivalency of a US bachelor’s
degree. See 8 C.F.R. § 214.2(h)(iii)(D)(5).
Unfortunately, the US Citizenship and Immigration Services (USCIS) applies a
different standard when an employer files an employment-based immigrant
petition (Form I-140) on behalf of a foreign national. With respect to a
Form I-140 filing under the Employment-based Third Preference (EB-3), the
USCIS insists on the foreign national being able to demonstrate a single
foreign degree that equates to a US bachelor degree when the underlying
labor certification requires such a bachelor’s degree. In many
countries, a bachelor’s degree is awarded after the completion of a
3-year college program as opposed to the 4-year program, as is generally the
case in the United States. While a three-year bachelor’s degree from
the United Kingdom is recognized as being equivalent to a four-year US
bachelor’s degree, an Indian three-year bachelor’s degree is
not. If the foreign national combines the 3-year degree with
work experience or with a one year post-baccalaureate diploma program, which
is permitted under an H-1B petition, the USCIS will not accept it as being
an equivalent to an US degree on the I-140 petition. The USCIS relies on the
EB-3 definition of “professional” under 8 C.F.R. §
204.5(1)(2)(c), which requires the demonstration of a “baccalaureate
or a foreign equivalent degree” to qualify as a
“professional” under the EB-3 preference.
In Grace Korean United Methodist Church and Park v.
DHS, _F.Supp_, CV.04-1849-PK (D.Oregon, Nov.3, 2005), the labor
certification application required a “BA or equivalent” in
theology. When the employer, Grace Korean United Methodist Church, filed an
I-140 petition upon approval of the labor certification, the Nebraska
Service Center insisted that this language can only be read to require a
bachelor’s degree or a single foreign equivalent degree. Both Grace
Korean United Methodist Church and the foreign national employee, Park,
argued without success that the foreign national should have been considered
as a “skilled worker” rather than as a
“professional” under the EB-3 preference.
After their argument was turned down by the Appeals Administrative Office
(AAO), plaintiffs sued the Department of Homeland Security (DHS) and the
USCIS in a federal district court in Oregon. Plaintiffs were supported by a
friends of the court, Amici Curiae, brief from the American Immigration Law
Foundation and American Immigration Lawyers Association. The law firm of
Cyrus D. Mehta & Associates, PLLC assisted in the writing of the Amici
Curiae brief.
The essence of the plaintiffs and amici’s argument was as follows: The
petitioner must select a “petitioner type” on the I-140
petition. The plaintiffs selected option e, which is petition for “a
skilled worker (requiring at least two years of specialized training or
experience) or professional.” If the USCIS did not consider Park to be
qualified as a “professional” for lacking a single foreign
bachelor’s degree, she was still able to qualify as a “skilled
worker.”
The INA defines “skilled worker” as:
“Qualified immigrants who are capable, at the time of petitioning
for classification under this paragraph, of performing skilled labor
(requiring at least 2 years of training or experience), not of a temporary
or seasonal nature, for which qualified workers are not available in the
United States.”
INA § 203(b)(3)(A)(i).
A “professional” is defined as:
“qualified immigrants who hold baccalaureate degree and who are
members of the professions.”
INA § 203(b)(3)(A)(ii).
The I-140 form does not require the employer to designate whether the
petition is seeking classification of the applicant as a “skilled
worker” or “professional.” Thus, the plaintiffs
successfully argued that even if the foreign national was unable to meet the
bachelor’s degree requirement under the “professional”
definition of the INA, Park was at least able to meet the definition of
“skilled worker.” The “skilled worker” only requires
two years of training or experience, which Park amply demonstrated. The
district court, on the other hand, rejected the USCIS’ argument that a
skilled worker must also be able to demonstrate that he or she has a single
source foreign equivalent degree, especially since the job on the approved
labor certification required a bachelor’s degree.
The following extract from the Court’s opinion is worth noting:
“Neither the statute nor the implementing regulations require an
actual degree for approval under this classification. Had Congress intended
to require skilled workers to posses a degree, it would have included that
requirement as it did in the “professional” classification. See
INA § 204(b)(3)(A)(ii). This interpretation is supported by CIS’s
own comments to the regulations implementing the definitions of
“skilled worker” and “professional:” the agency
stated unequivocally that “[p]ersons formerly qualifying for third
preference by virtue of education and experience equating to a
bachelor’s degree will qualify for the third employment category as
skilled workers with more than two years training of training and
experience.” 56 FR 60897, 60900 (Final Rule: Employment-Based
Immigrants, Nov. 29, 1991). Because Congress did not require a degree for
classification as a “skilled worker,” defendants’
requirement that Park possess an actual degree is contrary to the plain
language of the statute and the clear Congressional intent.”
Although this is an important victory for foreign nationals who have been
snared by the USCIS’ rigid definition of an equivalent
bachelor’s for an I-140 petition, the government may still appeal the
decision. Even if the government does not appeal and this decision becomes
final, it will only be binding on the plaintiffs in the instant matter.
However, the decision may still be persuasive for others and may also
hopefully nudge the USCIS into interpreting the EB-3 “skilled
worker” provision more broadly in favor of foreign nationals who
cannot demonstrate a single foreign degree that is equivalent to a US
degree.
Endnotes [omitted 11/30/05 Ed.]
This article originally appeared on http://www.cyrusmehta.com
About The Author
Cyrus Mehta, a graduate of Cambridge University and Columbia Law School, practices
immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates,
P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation and
recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association
of the Bar of the City of New York and former Chair of the Committee on Immigration and
Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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