USCIS to adopt appellate ruling on EB-2 qualifications

U.S. Citizenship and Immigration Services said in a policy memo that a ruling by the Administrative Appeals Office in the case Matter of O-A-, Inc. will be adopted and followed by USCIS officers in similar cases.

The ruling addresses educational credentials of foreign individuals under the EB-2 category and clarifies how USCIS will calculate years of requisite post-baccalaureate experience, where the individual has earned a provisional certificate before receiving a formal diploma. The EB-2 advanced degree category requires a bachelor’s degree plus five years of post-baccalaureate experience.

Key points:

• USCIS officers must conduct a case-by-case analysis to determine whether at the time the provisional certificate is issued, the individual has completed all substantive requirements of earning the degree and that the university has approved the degree.
• If the employer proves that the provisional certificate represents completion of all substantive degree requirements and the degree was in fact approved by the educational institution, USCIS will consider the date of the provisional certificate rather than the date of the diploma for purposes of calculating whether the individual possesses five years of post-baccalaureate experience.

Background: The case involved a computer software company sponsoring a software developer for a green card in the employment-based second preference category. The employer presented evidence that the individual had five years of experience following the date of her provisional certificate, but USCIS denied the petition on the grounds that she fell just short of the five years if counted from the date of her actual diploma.

The employer also submitted a letter from a director of the university stating that the provisional certificate was proof that the individual completed all degree requirements and that issuance of the formal diploma was delayed because of administrative reasons.

On appeal, the AAO ruled that the statute and regulations on the EB-2 classification speak in terms of “degrees,” not diplomas, and a case-specific analysis is required to determine whether a provisional certificate meets the substantive requirements of a degree.

BAL Analysis: The adoption of the ruling by USCIS adjudicators will benefit employers sponsoring EB-2 candidates on the basis of a provisional educational certificate. Officers will take a case-specific approach and employers bear the burden of proving that the provisional certificate is equivalent to fulfilling all degree requirements.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.

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