New "Five Year" Standard Possible For Advanced Degree Labor Certification
Many applicants seek to file labor certification applications as EB-2 advanced degree professionals in order to avoid significant delays related to the EB-3 specialty worker category. In order to qualify for the EB-2 applicants must show a U.S. Bachelor's degree or its foreign equivalent plus five years of progressive work experience in the field, or a U.S. master's degree or its foreign equivalent. With regard to the foreign equivalent of a master's degree USCIS has applied a “six year rule” requiring a four year bachelor's program plus the two years master degree program.
In December of 2007 the Administrative Appeals Office or AAO held that the regulation under 8 C.F.R. §204.5(k)(2) only requires proof of the foreign equivalent degree above a bachelor's degree, and that an applicant can obtain this degree in five years with a 3 year's bachelor degree and two year master's degree program. This is a significant decision which will affect many applicants because many bachelor degree programs overseas are three year programs, yet a subsequent advanced degree still qualifies as the equivalent of a U.S. Masters program.
This is a departure from prior decisions in which the Service would not recognize the advanced degree unless the bachelor's degree was a four year program, often referred to as a “six year rule” combining a four year bachelor's and two year master's degree program. The AAO's decision suggests that determination on an applicant's foreign master's degree does not require a four year program for the underlying bachelor's degree and that applicants can qualify for EB-2 status with a 3+2 configuration that is three years of bachelors and a two year master's degree program.
The important point here is that persons who have a three year's bachelor degree and a two year masters, have a good chance of demonstrating foreign degree equivalency and qualifying for an EB-2 if they emphasize the nature of their education, applicability to their current petition and provide multiple credible credential evaluations at the bachelor and master's degree levels. In light of the AAO's recent decision applicants should consider re-filing an EB-2 petition even if it has been denied in the past based on the length of their bachelor's or undergraduate degree program.
Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.
A similar version of this article may have been published in the Asian Journal.