So you think you have a bachelor’s degree? Perhaps not.
Any foreign national undergoing the PERM process for their employment-based green card should know the importance of correctly specifying their educational degree in the labor certification application. It could mean the difference between an approval and a denial.
The PERM process is necessary to obtain a green card under the EB-2 or EB-3 category. In order to qualify for the approval an EB-2 petition, the beneficiary should have an advanced degree which means “any United States academic or professional degree or a foreign equivalent degree above that of a baccalaureate [bachelor's]". The acceptable equivalency to an advanced degree is a U.S. bachelor’s degree and five years of progressive, post-baccalaureate experience, or a foreign equivalent degree followed by five years of progressive post-baccalaureate experience in the specialty field.
In order to qualify for the approval of an EB-3 petition, the beneficiary should either be a “professional," which means he is a “qualified alien who holds at least a U.S baccalaureate degree or a foreign equivalent degree who is a member of the professions", or a “skilled worker" which requires two or more years of experience in the occupation.
If you think this is fairly simple, better think again. Our office is engaged to review many EB-2 and EB-3 denials because the previous attorney was not careful in analyzing the foreign national’s education.
Since the regulation uses the phrase “degree" instead of “degrees" and defines equivalency in the singular, a combination of degrees or post-graduate diplomas will not qualify as a foreign equivalent degree as permitted under the regulation.
Here are a few examples of some complications that may arise because of this subtlety in the regulation:
It is not possible to qualify for the EB-2 category based on a combination of degrees. The equivalent degree must be a single degree. This is applicable to both master’s degrees and the equivalent bachelor’s degree with five years of experience. In order to qualify for EB-2, Mr. S should have a 4-year B.S degree and more than 5 years of progressive experience OR he should have a 2-year foreign master’s degree obtained after a 4-year B.S degree.
It might be worthwhile to file Mr. S’s case under the EB-3 “skilled worker" category with the job requirement of more than 2 years of experience. In many of our PERM cases, we qualify the foreign beneficiary as a “skilled worker" category instead of a “professional" since both fall under the EB-3 category with exactly the same benefits. However, in many cases, it is easier to qualify as a “skilled worker" than as a “professional."
Finally, it is important to note that USCIS reviews each applicant’s educational qualifications on a case-by-case basis, and considers foreign credential evaluations to be purely advisory in nature. This case-by-case policy makes it difficult to provide definitive guidance on how best to proceed with employment-based cases where there are degree equivalency issues.
Degree equivalency is a complex area, so unless the foreign national has a bachelor’s or master’s degree from a U.S. university, it is wise to check with an attorney experienced in employment-based immigration law before applying for a temporary work visa or a PERM application.