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Bloggings: August 1, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

August 07, 2007

Important Comments on 2nd / 3rd Preference Issue

Comment by Michelle Skole:

An alien can qualify as a 3rd preference skilled worker by virtue of being either professional or a skilled worker. Thus an employer requirement that states bachelors or equivalent may create some wiggle room for CIS to argue that this is a professional requirement, and they should be able to determine what is professional. Where the alien does not have the Bachelor's, or at least equivalent education, it might make sense to make the 2 years experience and 2 years post secondary education the primary requirement and to make a bachelors or four years of college the alternative that can be substituted.

Michelle's comment is a good one -- by putting "or equivalent" and nothing more, you open the door for CIS to determine what your requirements are! -- JS

Comment by Sheila Danzig:

In both 2006 and 2007 the AILA liason committee addressed this matter. The following response by the Nebraska Service Center was given to a question posed during the April 19, 2006 AILA liaison visit with the I-140 product line manager supervisors: We are aware that some countries (i.e., many European countries have educational systems that have the equivalent of 13 years education prior to university, and that education plus a three-year university degree is the equivalent of a Bachelorís degree in the U.S. However, many other countriesí educational systems have only 12 years of education prior to university, and then only three years of university coursework. With respect to such degree, we need evidence that the beneficiary has the equivalent of the required degree...A simple credential evaluation stating that the degree is equivalent may not be sufficient. It should be supported by a detailed explanation of how that conclusion was made and the transcripts of the beneficiaryís schooling to support the explanation and to document where the evaluator found the coursework equating a four-year degree. In this response, the Center acknowledges that a degree issued in an educational system, such as that pertaining in India, may be accepted as the equivalent of a United States four year bachelorís degree provided coursework is demonstrated that equates to a four year degree. Again, as stated in the April 2007 NSC Liaison Spring Meeting: 2. We understand that NSC reviews a beneficiaryís educational qualifications on a case by case basis, and considers credential evaluations to be purely advisory in nature. The case by case olicy makes it difficult for petitioners to understand what documentation is needed to support their case. One member reports receiving multiple RFEs requesting documentation of the "length and complexity of the academic program; but this type of request in an RFE still does not provide the guidance needed to prepare a response. For the situations listed in Question 1 where documentation beyond the official academic record is needed to establish either bachelorís degree or masterís degree equivalency, it would be helpful if NSC could provide some basic guidance concerning the minimum content of the supplementary documentation that would be needed to establish foreign degree equivalency with U.S. degrees. For example, for EB2 cases involving beneficiaries with an Indian 3 year bachelorís degree followed by a 2 year masterís degree, we understand that NSC has approved I-140s where the petitioner has submitted either: a. Examples of comparable U.S. masterís degree programs requiring only one year to complete (indicating that a total of 5 years of undergraduate and graduate level education is sufficient); or b. Credential evaluations that provide a detailed comparison of credit hours completed by the beneficiary for the 3 year bachelorís degree program with credit hours required by comparable U.S. bachelorís programs. Please confirm whether either or both of these types of documentation can establish equivalency in situations where NSC requires supplementary evidence of degree equivalency. Answer: Generally either of these would be sufficient to permit the service to make a determination regarding equivalency of education. Each petition filed must contain sufficient documentary evidence to establish that the beneficiary meets the qualifications set forth in the labor certification. If a masterís degree is required and the beneficiary does not have a U.S. masterís degree in the specified field of study the petitioner should be prepared to submit sufficient documentation to establish that the education that the beneficiary possesses is the equivalent to a U.S. masterís degree in the required field. Citing these two responses we have been able to show an equivalency, based on classroom hours, UNESCO regulations and more, to a US bachelor's degree. While we do not have 100% approvals the majority are approved for both EB2 and EB3. We agree that the best approach is EB3, skilled worker with 2 years of experience and 2 years of post secondary indicated on the labor certificate. However, if you are working with an approved labor that states a bachelor's degree is required, we have had good success with USCIS with this approach. We have a 400+ page reference file that we supply as well

Sheila -- I would give anything to see your 400+page reference file....! -- JS