(1) Advanced Degree Professionals.
(A) Eligibility. To qualify for this immigrant classification, two requirements must be satisfied: the alien must be a member of the professions holding an advanced degree or foreign equivalent; and the underlying position must require, at a minimum, a professional holding an advanced degree or the equivalent.
(B) Foreign Equivalent. Pursuant to section 203(b)(2)(A) of the INA certain "qualified immigrants who are members of the professions holding advanced degrees or their equivalent..." are eligible for E21 immigrant classification. The Joint Explanatory Statement of the Committee of Conference, made at the time Congress adopted the Immigration Act of 1990, stated that the equivalent of an advanced degree is "a bachelor's degree plus at least five years progressive experience in the professions." See H.R. Rep. No. 101-955, 101st Cong., 2d Sess. 121 (1990).
USCIS has incorporated this standard with respect to establishing equivalency to a master’s degree in its regulations at 8 CFR 204.5(k)(3)(B). If a doctorate is customarily required for the profession, however, the regulations reflect that the alien must have the doctorate or a foreign equivalent degree. 8 CFR 204.5(k)(2).
An alien can satisfy the advanced degree requirement by holding any of the following: (1) a U.S. master’s degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher; or (2) a U.S. bachelor’s degree, or a foreign degree evaluated to be the equivalent of a U.S. bachelor’s degree, plus five years of progressive, post-degree work experience. An alien who does not possess at least a bachelor’s degree or a foreign equivalent degree will be ineligible for this classification.
(C) Credentials Evaluation: In cases involving foreign degrees, you may favorably consider a credentials evaluation performed by a certified independent credentials evaluator who has provided a credible, logical and well-documented case for such an equivalency determination that is based solely on the foreign degree(s). In addition, you may accept an evaluation performed by a school official that has the authority to make such determinations and is acting in his or her official capacity with the educational institution. Nevertheless, it is important to understand that any educational equivalency evaluation performed by a credentials evaluator or school official is solely advisory in nature and that final determination continues to rest with the adjudicator.
(D) Advanced degree position. Mere possession of an advanced degree is not sufficient for establishing eligibility for E21 classification. Pursuant to 8 CFR 204.5(k)(4)(i), the petitioner must also demonstrate that the position certified in the underlying labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent. The petitioner must demonstrate that it, 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 factor is not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree, but rather that a combination of foreign degrees or credentials meets the educational requirements that have been specified by the employer on individual labor certification approved by the Department of Labor.
The requirement that the position require, at a minimum, a person holding an advanced degree has resulted in a particular problem involving E21 petitions filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require advanced degrees. Specifically, the DOL's Occupational Outlook Handbook indicates that, in the nursing profession, only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (clinical nurse specialist, nurse practitioner, etc.) generally require advanced degrees. A registered nurse job, by contrast, usually does not require an advanced degree holder. Because of the long waiting periods currently required for issuance of third-preference employment-based immigrant visas, a “gap” between the available supply of visa eligible nurses and the high demand for nursing services has developed.
