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

Source Degree Rule

• 3+2+5

– 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!)

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

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:

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

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

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.

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

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.”

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,

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

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