EB2 minimum requirements

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With more and more prospective immigrants considering upgrading from EB3 to EB2, it is worth taking a moment to review the legal requirements for EB2 classification. Initially, we must keep in mind that there are alternative qualifications. That is, a petition can qualify under the “advance degree” or “exceptional ability” standards. I mention this because there are a small number of people without advanced degrees who can, in fact, qualify under the exceptional ability standard. I do not plan to discuss the exceptional ability standard in this article, but will do so in a subsequent article. For anyone interested in finding more information, go to 8 CFR 204.5(k) for the specific criteria required.

With respect to the EB2 advance degree standard, the regulations of the USCIS require the following:

1. An official academic record showing that the alien has an United States advanced degree or a foreign equivalent degree; or

2. An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.

The CIS insists that for the alternate degree/experience qualification, the foreign degree must be a four year bachelor’s degree. They are unwilling to accept combinations of study programs that equal four years of study. Rather, they insist that the petitioner show that the beneficiary received a four year bachelor’s degree.

In fact, there is no legal authority for this position. The case most often cited as the authority for the four year degree requirement is Matter of Shah, 17 I&N Dec. 244 (Reg. Comm. 1977). The holding in that case does not speak to this issue. Rather, it has to do with the lack of evidence of the beneficiary’s qualifications as a chemist. There is a comment, without any reference to legal authority, that a three year degree is not the equivalent of a U.S. four year degree. As it is set forth, however, this is no more than an opinion, with about as much relevance to the holding in the case as would be commentary on the weather. Still, unless you are prepared to litigate this issue, the USCIS will insist on a four year bachelor’s degree as the educational jumping off place for claiming EB2 classification.

The CIS, in its Adjudicator’s Field Manual, in Chapter 22.2, instructs adjudicator’s as follows with respect to the actual job offered in EB2 cases:

The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by an individual holding an advanced degree. In this regard, the key factors are not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that a combination of foreign degrees or credentials:

· Meets the minimum education requirements for the position in the individual labor certification approved by the Department of Labor; and ,

· The minimum requirements for the position in the labor certification meet the definition of an advanced degree at 8 CFR 204.5(k)(2) .

Most often, the CIS adjudicators will look to the job as it is described in the PERM application to determine whether it actually requires knowledge equal to that customarily gained through study leading to an advanced degree. Never assume that simply because the PERM application states that an advanced degree, or its equivalent, is the minimum requirement for the job that the CIS will accept this blindly. The Petitioner must establish affirmatively the requirement for the advanced degree.