5/15/2007

There are a plenty of employers whose I-140 petitions for either EB-2 or EB-3 have been denied after the approval of their labor certification applications requiring "Bachelor's Degree or Equivalent" as educational requirement when their alien beneficiary did not have a single bachelor's degree.

Such nightmare has been brought about by their misunderstanding of the term "equivalent" to mean "combination of two degrees or suitable education, training, and experience" as evaluated by the foreign credential evaluation agencies.

However, for the purpose of the alien labor certification application and the subsequent I-140 petition, the unqualified "equivalent" means nothing but an equivalent "foreign degree." This is well settled by the Department of Labor as well as the USCIS.

The misunderstanding of the terms led to denial of an EB-3 petition as the alien beneficiary did not have a bachelor's degree and combination of education, training, or experience is not acceptable.

The misunderstanding of the terms led to denial of an EB-2 petition for an additional ground: no matter how the unqualified "equivalent" is taken, the combination of education, training, or experience is absolutely not acceptable as a substitute for educational degree requirement in EB-2.

In other words, in EB-2, it does not matter whether the equivalent was qualified or unqualified in the labor certification application. Unless the alien beneficiary has an educational degree that meets the educational requirement, the alien is not eligible for the EB-2 even if he/she has 20 or 30 years of experience. In other words, equivalent is not acceptable in the context other than a foreign equivalent degree.

This is contrasted to EB-3 in that in EB-3, if the employer specifically qualifies the term "equivalent" to mean a combination of multiple degrees or combination of education, training or experience which are evaluated to be equivalent to a bachelor's degree by authoritative evaluators, the alien beneficiary without a bachelor's degree can be qualified for the EB-3 petition.

Simply put only "unqualified equivalent' requirement kills EB-3 petition, while both "qualified" and "unqualified" equivalent requirements kill EB-2, unless the alien beneficiary holds a bachelor's degree or equivalent foreign degree. There should be no mistake about these rules in preparing a labor certification application strategy and planning.