12/31/2007

1. Bachelor's Degree Equivalency involving 3-Year Post-Secondary Foreign Degree:

1) Issue of Completion of Four-Year Degree Equivalent Credits in Three Years: Despite its general policy not recognizing a foreign three-year degree as equivalent to a U.S. bachelor's degree, USCIS is also examining the specific educational sequence and content of individual cases and if they find such additional credits would make it equivalent to a U.S. bachelor's degree, they would recognize such equivalency. The catching words are "sequence" and "content." Accordingly, even if one earned enough additional credits that are normally required in a U.S. bachelor's degree, they can refuse to accept the equivalency if the sequence and content of additional courses or credits fail to meet their standards. 

Accordingly, they will not only consider the quantity of the credits and programs but also quality of the credits and programs. It thus appears that evaluation of the specific courses and credits based on these standards by academic institutions may have a better chance to obtain approval than other evaluation reports that only count the number of credits. [Caveat]: Despite the exceptional rule, I-140 will be still denied if the labor certification application specifically required "4-year" in college for a bachelor's degree or equivalent. USCIS will stick to the specific language in the labor certification application. Accordingly specifying 4-year education as requirement of a bachelor's degree in the labor certification application may lead to a trap.

2) Issue of Equivalency of Three-Degree Foreign Degree Plus Two-Year Foreign Post-Graduate Degree: The rule on this issue remains still up in the air. Experiences varied.

2. Combination of 4-Year Bachelor's degree in Unrelated Field and Master's Degree in the Field of Specialty

The USCIS distinguishes between the graduate degree earned in the U.S. and the same degree earned in a foreign country. If the alien was admitted to and granted a master's degree in the field of specialty by a U.S. graduate school, the USCIS will accept the bachelor's degree equivalency in the field of specialty even though three-year foreign degree was earned in a different field. 

However, the same will not apply in the foreign earned master's degree in that a foreign master's degree in the specialty field will not "automatically" lead to a U.S. bachelor's degree equivalency in the specific field of specialty. USCIS will evaluate each situation case by case and determine this issue. Probably they may apply the same rule of reviewing sequence for the purposes. Accordingly, a careful selection of credential evaluators will be critically important.

3. EB-31 (Skilled Worker) vs. EB-32 (Professional) Issue

From the standpoint of EB-3 applicant, it does not matter whether one obtains EB-3 approvals in EB-31 or EB-32 as the visa number falls under the same category. Accordingly, their strategy is to obtain EB-3 I-140 approval, no matter whether in Skilled Worker classification or in Professional classification. In achieving this goal, one should draft the labor certification application carefully considering the following USCIS policy: 

1) If the petitioner requires I-140 for "professional" when the labor certification and the alien's background supports only Skilled Worker classification, USCIS will still approve such I-140 not as a "Professional" classification but "Skilled Worker" EB-3. In this case, the alien's goal is achieved. 

2) On the other hand, if the labor certification application required a professional background and the alien fails to meet the professional background, USCIS will refuse to approve it as Skilled Worker classification and deny such I-140 petition on the ground that the labor certification requirements cannot be downgraded to accommodate the beneficiary's qualifications. It is thus critically important that in presenting the I-140 petition, petitioner may require professional or skilled worker classification such that should one fail to meet one of the two classifications, one's EB-3 petition can still be approved.

4. Availability of Multiple Petitions (EB-2 and EB-3) Using Single EB-2 Labor Certification Application

This strategy is particularly valuable when one's EB-2 I-140 can be potentially deniable but EB-3 I-140 petition is approvable in either professional classification (EB-32) or skilled worker classification (EB-31). Additionally, one never knows whether EB-2 retrogression will become worse than EB-3 retrogression for a specific.