Upgrading from EB3 to EB2

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In recognition of the lengthy third preference delays, many Chinese and Indian employment based third preference applicants have started looking at upgrading their preference status. Whether they are able to do so depends upon a number of factors, including:

The actual requirements of the job;
Whether the employee has a four year undergraduate degree; and,
Whether the employee can qualify for the job without including any education, experience, or specialized skills gained after being hired by the sponsoring employer.

Let’s examine these requirements individually.

Actual Job Requirements

There are no “EB2” or “EB3” PERM applications, only PERMs with stated minimum qualifications that will support an EB2 or EB3 petition. The qualifications on the PERM are not the final word as to whether a particular job actually requires an advanced degree. That determination is made by the USCIS.

The USCIS will look to the customary requirements in the industry as a whole to determine whether the job requires knowledge equivalent to that customarily attained through study leading to the receipt of an advanced degree. For example, a chef may have an advanced degree in culinary arts, but even high-end executive chefs do not customarily have advanced university degrees. For this reason, while it might be possible to receive a PERM approval for a chef with an advanced degree, the USCIS would almost certainly deny an EB2 petition for that job.

Even in cases where many employers in the field require advanced degrees, the USCIS will look to the job description to see if it requires advanced skills. They will expect to see phrases such as “employing advanced knowledge of theoretical concepts” and “using highly advanced skills” as part of the job description if it is not otherwise clear that the position requires an advanced degree.

This is set forth in the regulations at 8 CFR §204.5(k)(4)(i):

"The job offer portion of the individual labor certification ... must demonstrate that the job requires a professional holding an advanced degree or the equivalent or an alien of exceptional ability."

Masters or four year undergraduate degree

The CIS regulations at 8 CFR §204.5(k)(2) define advanced degree equivalency: "Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate." The USCIS has parsed this language very carefully and held that the word “degree” is dispositive. That is, the foreign national must have “a degree” not a combination of degrees. Similarly education, no matter how extensive, cannot be combined into a degree equivalent.

The “degree” must be a master’s degree, a first professional degree (such as an MD or JD), or a four year bachelor’s degree followed by five years of experience in the specific field. All degrees must be either U.S. degrees or foreign equivalents of U.S. degrees.

For advanced degree equivalency purposes, there is another common problem that presents often. Since many foreign universities have three year bachelor’s degree programs, graduates of those schools have a particular problem. The USCIS position is that for foreign equivalency purposes, there must be at least a single four year degree, period. The employee may not combine education and experience. Similarly, the employee may not add together various undergraduate and post graduate programs to try an show a “U.S. equivalent” education. They are fixated on the use of the word “degree” in the regulations and will not accept anything other than a single, four year degree.

Qualifications gained after being hired by the sponsoring employer

The Department of Labor takes the position that an employer must be willing to hire any U.S. worker who possesses the skill set the beneficiary of the PERM application had when that worker was initially hired. They feel that allowing the employer to require anything more is unfair to U.S. workers. There are limited exceptions to this rule, but they are extremely difficult to prove and rarely accepted by the DOL.

If the employee has acquired additional skills, such as an advanced degree, or specialized experience, then the employee will likely need a job offer from a different employer.

It is possible to continue to work for one employer, while another sponsors the employee for a PERM and EB2. The only condition is that the employee and the sponsoring employer must intend in good faith to work together as soon as the employee achieves lawful permanent resident status.

If you feel that you would like to upgrade from EB3 to EB2, and you would like to discuss your prospects, please feel free to call our office.