Pitfalls in Degree Equivalency

Pitfalls in Degree Equivalency January 7, 2010 Ron Wada, San Francisco, CA Rob Cohen, Columbus, OH

Major developments 2008-09 Review of the single source degree rule Other advanced degrees for EB2 the MBBS Two recent AAO decisions on a degree in any major Important recent BALCA decisions on substantial equivalence of alternate job requirements

The Single Source Degree Rule EB2 Regulation at 8 CFR 204.5(k)(2) Requires a foreign equivalent degree NOT foreign equivalent education Applies to bachelor s degrees and advanced degrees (e.g., master s, Ph.D.) NOTE: The H-1B degree equivalency regulation does not apply to I-140 petitions

Exceptions to the Single 3+2+5 Source Degree Rule 3 yr Bachelor s degree + 2 yr Master s degree + 5 yrs progressive, post-degree experience Degrees involving transfer credits for coursework at other schools (NEED DOCUMENTATION!) ALWAYS check the AACRAO EDGE database!

Case Example #1 Beneficiary has: 3 yr Bachelor s degree 3 yrs of graduate level education Credential evaluation says that the beneficiary has the equivalent of a U.S. Master s degree Is the beneficiary eligible for EB2?

The EB3 Safe Harbor Alternative degree equivalency stated explicitly on Form 9089 LC with alternative degree equivalency language will not qualify for EB2

Deg. Equiv. Options for EB3 Will accept a combination of degrees or diplomas; Will accept three or four-year degrees; Will accept educational equivalency evaluation prepared by qualified evaluation service or in accordance with 8 CFR 214.2(h)(4)(iii)(D); Will accept a bachelor s equivalent based on a combination of education as determined by a professional evaluation service.

Ineffective Options for EB3 degree equivalency Checking yes at H.9 on Form 9089 [ Is a foreign educational equivalent acceptable? ] Including the Kellogg language [ any suitable combination of education, training or experience is acceptable ] Analysis: Foreign Degree must actually be an Equivalent Degree or Employer must specify acceptable alternatives

Other Advanced Degrees for EB2 the MBBS degree Issue: Whether a foreign professional degree obtained without an underlying bachelor s degree is an advanced degree for EB2? For MBBS degree, AAO says yes SRC 08 198 51124, AILA Doc. 09011320 (posted January 13, 2009); SRC 08 219 53365, AILA Doc. No. 09021835 (posted February 19, 2009).

MBBS degree, cont. AAO: EDGE provides that an MBBS from India represents the attainment of a level of education comparable to a first professional degree in medicine in the United States. A first professional degree within the United States includes a Doctor of Medicine (M.D.).... the beneficiary s education in this matter is equivalent to a medical degree from a regionally accredited institution in the United States.

Two Recent AAO Decisions Issue: whether a degree in any major defines a member of the professions Matter of (name withheld), (AAO Oct 30, 2009) AILA Doc. No. 09110363 (market research analyst position); Matter of (name withheld), (AAO Oct. 30, 2009) AILA Doc. No. 09110461 (senior programmer/analyst position requiring a Bachelor s degree in Any Major and 60 months experience in the job offered).

History of degree in any major issue 2004 AAO decision finding that 5 years of progressive, post- baccalaureate experience in the required field is functionally equivalent to a Master s degree in the required field even though the Bachelor s degree is in a different field; (see Ron s book at Appendix C-2) Hoosier Care, Inc. v. Chertoff, 482 F.3d 987 (7th Cir., 2007)

Alternate basis for approval for any major cases A job requirement of a degree in any major should qualify for EB2, provided that the degree requirement is consistent with information contained in the OOH for the specific occupation NSC concurs with the AAO position in these decisions Allows AAO and USCIS to avoid acknowledging and acquiescing to the 7 th Circuit precedent

Case Example #2 PERM app. For Tax Manager requiring a Bachelors in Accounting or Finance + 5, or Masters + 3. Beneficiary has: a foreign 4 year bachelors degree in an unrelated field ("English for Science and Technology"), and a 2 year "Diploma in Accounting" from a Canadian university. Credential evaluation finds the Diploma in Accounting alone to be equivalent to a US B.S. in Accounting.

Analysis of Case Example #2 USCIS probably won t accept the bachelor s + accounting diploma as equivalent to a U.S. bachelor s degree in Accounting; The credential evaluation is suspect, and would most likely be ignored by USCIS. AACRAO EDGE database should be consulted to verify whether the Diploma in Accounting, standing alone, will be accepted by USCIS as equivalent to a U.S. bachelor s degree.

Analysis of Case Example #2, (Continued) Targeting an EB3 I-140 filing with specific equivalency language on Form 9089 is the safe harbor; Beneficiary s 4 year bachelor s degree not in the required field could still be used to qualify for EB2, if the bene has 5 years of post-baccalaureate experience in the required field (accounting in this case). A job requirement of a Master s or equivalent in accounting + 3 and an alternate requirement of a Bachelor s degree in any field + 5 years experience in accounting could work

Recent BALCA Decisions Issue: Alternative job requirements must be substantially equivalent under PERM regulations at 20 C.F.R. 656.17(h)(4) Matter of AGMA Systems LLC, 2009-PER- 00132 (BALCA Aug. 6, 2009) Matter of Globalnet Management L.C., 2009-PER-00110 (BALCA Aug. 6, 2009)

College Degrees Under the DOL SVP System General Associate's Degree 0 SVP yrs Specific Associate's Degree 2 SVP yrs Baccalaureate Degree 2 SVP yrs Master's Degree - 4 (2+2) yrs Doctorate Degree -7 (2+2+3) yrs Source: DOL Field Memorandum No. 48-94, AILA InfoNet Doc. No. 94052390 (posted May 23, 1994) Note: SVP may be inconsistent with Job Zone

Matter of AGMA Systems Affirmed that a bachelor s degree plus five years of experience is substantially equivalent to a master s degree plus three years of experience Declined to address whether a bachelor s degree plus five years of experience is the substantial equivalent of a master s degree alone, as authorized by the USCIS regulation at 8 C.F.R. 204.5(k)(2)

Matter of Globalnet Management Market Research Analyst - primary job requirement of a Bachelor s degree + 2 years experience, and an alternate requirement of a high school diploma + 14 years experience 14 years of experience is not substantially equivalent to a Bachelor s degree and 2 years of work experience, the requirement of 14 years of experience significantly restricts the applicant pool and contravenes the SVP requirement. Specifically rejected the application of 8 CFR 214.2(h)(4)(iii)(D) to PERM applications.

Workarounds for Globalnet Structure alternate job requirements so that they fall in the same SVP category and have the same number of SVP years, or Avoid using alternate job requirements entirely in PERM applications where the alternate job requirement could render the PERM application vulnerable to denial based on lack of substantial equivalence.

Case Example #3 How to draft job requirements for a beneficiary who has 30+ years of experience as a Sales/ Marketing Manager and Director, including 6 years working in the job offered by the employer, but no degree

Case Example #3 STEP 1: Recognize that this position will not qualify for EB2 the only possible I-140 category for this position is EB3, which includes skilled workers; STEP 2: Facts are similar to Matter of Globalnet. Globalnet makes it impossible to use 3:1 rule (8 CFR 214.(h)(4)(iii)(D)) for alternative requirements.

Case Example #3 STEP 3 - Suggested approach: Define a single primary requirement and avoid defining an alternative set of job requirements; Avoid job requirements far in excess of the SVP level defined by DOL unless overwhelming business necessity documentation is available.

Case Example #3 STEP 4 - Work with the employer to hone the minimum job requirements, e.g.: X years experience in managerial position in marketing department of a comparable size company (e.g., with at least $15 million in annual sales) Note: (1) Years of managerial experience is what is really required, and includes prior non-managerial experience; (2) Verify that the requirements are consistent with prior or potential applications by the same employer.

Case Example #4 Employer requires a BS + 5; Employee has a 3 year BS and a 3 year MS from India in the required field, followed by 8 years of relevant experience. If I don t list an alternate MS requirement on Form 9089, and just list the BS + 5, will there be an issue with an EB-2 case because the beneficiary doesn t have a single source bachelor s degree?

Case Example #4 Two Options: Go with BS+5 alone; USCIS should accept the bene s master s degree as equivalent to a U.S. bachelor s degree (see NSC Liaison Committee Notes, AILA Doc 07031267, page 5, posted 3/12/07); OR Consult further with the employer to see if an alternate requirement of an MS+3 is acceptable; if yes, then use BS+5 and MS+3.

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