Written by attorney Erik CJ Anderson

Factors to Consider When Filing an EB2 Versus EB3 Case for India IT Professionals

The following summarizes factors to consider in making a determination whether an IT professional should be processed in the EB2 versus EB3 category. Many employees are under the impression that they should automatically be considered for EB2 processing if they qualify for the category individually. However, other factors must be considered in making the EB2 decision, such as whether an employer can demonstrate a business necessity for heightened EB2 requirements for a job classification, as well as the increased salary levels associated with EB2 processing. Each of these factors is summarized below.

Individual Qualifications Needed for EB2 Processing

An individual can qualify for EB2 processing if he or she possesses the equivalent of a US master’s degree or possesses a single 4-year undergraduate degree followed by at least five years of progressively responsible work experience. With India educated individuals, we typically run into the issue of EB2 qualifications when a candidate possesses a 3-year B.Comm. degree followed by a 2-year Indian MS program. Here, the USCIS does not permit us to combine his educational programs to obtain the necessary BS degree (plus the 5 years of progressively responsible work experience) for EB2 processing.

On this point, the USCIS takes the position that a U.S. bachelor’s degree or foreign equivalent degree for EB2 purposes requires a single source four-year degree followed by five years of progressively responsible work experience. See generally, Matter of Shah, 17 I&N dec 244 (Reg’l Comm’r 1977). Unfortunately, one cannot combine degrees or work experience to meet this requirement. The Agency’s interpretation in this regard is largely based on the applicable EB2 regulatory provision which states that, “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree." The Agency has interpreted “a foreign equivalent degree" to mean a single degree. It’s rationale in this regard is perhaps best exemplified in Matter of [name not provided], LIN 06 164 51652 (AAO Dec. 5, 2007), wherein the Agency explains that:

Where the analysis of the beneficiary’s credentials relies on work experience alone or a combination of multiple lesser degrees, the result is the ‘equivalent’ of a bachelor’s degree rather than a foreign equivalent degree. In order to have experience and education equating to an advanced degree under section 203(b)(2) of the Act, the beneficiary must have a single degree that is the ‘foreign equivalent degree’ to a United States baccalaureate degree.

In light of the plain language of the regulation and the Agency’s interpretation of the same, it would difficult for an employer to sponsor individuals in the EB2 category whose BS equivalency is based on a combination of a three year B. Comm. program followed by a one or two year MS program, particularly when we do not have an evaluation providing us with a clean US master’s degree. Indeed, while some EB2 cases may have been approved in this scenario, these adjudications have at best been the exception rather than the rule. While the USCIS’s interpretation of section 204.5 is somewhat illogical and unfair, it is difficult to ignore the established body of law on this issue.

In closing, it should be noted that candidates with a three year B.Comm program followed by a three year MS program often obtain a US master’s equivalency. Indeed, we have routinely been able to process such cases in the EB2 category. It should be noted, however, that we have become aware of a few USCIS I-140 determinations that have rejected the “3+3" MS equivalency determination. While it may not be necessary at this point to reject a “3+3" candidate for EB2 processing, we should at least be aware of the possible issue in any such case.

Demonstrating a “Business Necessity" for EB2 Level Requirements for an Occupation

Generally, the EB2 classification is for people who will work in jobs that require someone with either an advanced degree (for example, a master's degree or Ph.D.) or its equivalent (i.e., a single four-year bachelor's degree plus at least five years of "progressive" experience). Classification is determined not necessarily by what education and experience the person actually has, but by what education and experience is necessary for the person's job as set forth in the labor certification. Here, it is important for the employer to be aware of what the DOL has defined as being the “normal" requirements for a particular occupation. When an employer provides job requirements in its offer of employment that exceed that which has been defined as “normal" to the occupation, the employer must demonstrate a business necessity for the heightened job requirements.

In the context of an IT employer’s positions for its PERM cases (i.e., software engineer, software developer, IT Project Manager), the DOL has defined the “normal" requirements for these occupations to actually be at the EB3 level. Accordingly, an IT employer must demonstrate a business necessity to the DOL for its EB2 cases. To do this, an employer must demonstrate that its stated minimum requirements for the job offer are justified by business necessity as set forth in the applicable regulations (20 CFR § 656.17(h)) and the leading case on this issue, Matter of Information Industries, Inc., 88-INA-82 (1989). Under the applicable regulations and case law, the job requirements must bear a reasonable relationship to the position in the context of an employer’s business and must be essential to perform, in a reasonable manner, the job duties as described by an employer. The sponsoring employer must also establish through its recruitment and otherwise that that the job duties for the offer of employment require either an advanced degree or significant experience. Put another way, the offer of employment must necessitate the requirements articulated in the offer of employment, and the job requirements for the position must logically match up with the job duties in the petition.

IT employer’s typically includes the following in its recruitment folder to demonstrate business necessity:

  1. Statements explaining that the requirements for the position are necessary;

  2. Sample classified advertisements for other earlier positions requiring a master’s degree and/or considerable industry experience consistent with the offer of employment;

  3. Alternative U.S. Department of Labor documentation establishing that the job requirements for the offered position are not abnormal and indeed necessary in certain instances;

  4. Independent employment classified advertisements for similar industry positions which require education and experience similar to the EB2 offer of employment.

The Salary Level for EB2 Cases

One of the most common obstacles to EB2 processing for an employer is the salary level applicable to an EB2 level offer of employment. Here, the prevailing wages for EB2 level cases often exceed $100,000 and can be as high as $150,000. While an employer does not actually need to be paying the offered wage at the time of the PERM filing, it must pay the offered wage at the time the GC is ultimately approved. As such, an employer must properly plan and strategize for EB2 sponsorship based on the prevailing wages received from the DOL.

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