Most EB-2 cases for professionals with advanced degrees are filed for aliens possessing a Master’s degree or higher. It is fairly simple this way. If a position requires an advanced degree and you have that degree: perfect, nothing more required than providing evidence that you graduated with an advanced degree. However, it is not necessary to actually hold a Master’s degree or higher in order to qualify as an alien with an advanced degree. Possession of a Bachelor’s degree followed by five years of progressive post-graduation experience in a related job field may qualify an applicant as an advanced degree holder for EB-2 purposes.

Using a Bachelor’s degree and 5 years of progressive post bachelor’s experience to qualify for EB-2 is good news for those applicants who do not possess a Master’s. But, there are also some unique problems that may arise from filing an I-140 for an advanced degree holder without the receipt of an actual Master’s degree. Most of these issues deal with the 5 years of progressive experience requirement. This article will deal with some of the more common misconceptions and problems related to applying for EB-2 with a Bachelor’s education alone.

USCIS allows for foreign equivalent degrees to be used in situations where a US degree is required. For the purposes of this article, whenever degrees are mentioned the term will apply to US as well as foreign equivalent degrees.

Progressive Experience

For a bachelor’s degree holder to count as an advanced degree professional, and therefore qualify for an EB-2 including a NIW, he/she needs to have at least five years of progressive experience following graduating from a bachelor’s program. Unfortunately, progressive experience is not defined by statute or regulation. Even USCIS adjudicators do not have definitive guidelines for what constitutes progressive.

Situations where terms are not clearly defined by statute or regulation can be both bad and good. They are bad because an applicant may be left wondering and worrying unnecessarily about whether or not their particular situation meets a term’s requirements. They can be good because if the USCIS does not even know exactly what a term means, then applicants have some flexibility in how that term applies to them. To document the 5 years of progressive experience, letters of employment and affidavits by former or current employers describing the alien’s work experience are required. Since, in general, employers know more about their specific industries than the USCIS, affidavits and letters of employment can highlight the progressive elements of the work experience even if, on paper, a position seems to be the same across 5 years of work.

For practical purposes progressive experience means that an employee did not remain static in job knowledge and duties. Progressive experience entails increasing levels of responsibility and knowledge related to a certain position. One easy way to document progressive experience over 5 years is to submit copies of pay stubs showing that an alien employee received higher wages as the time of employment went on (more pay for more complex work). Also, documenting promotions that carry different job titles for the alien can be a way to show that experience was progressive and not static.

5 Years Experience Needs to Be Full-time Equivalent

The five years of experience required to qualify a Bachelor’s holder as an advance degree professional are five FULL-TIME years. Once again, as seems to be fairly common, DOL and USCIS are not exactly precise on what full-time employment means. For EB-5 and EB-4 positions USCIS has defined full-time as at least 35 hours per week (DOL chooses not to define full-time, and this can come up as an inconvenience if labor certification is required for a positions). These definitions of full-time, while in the Immigration and Nationality Act, are for specific visa categories and can serve as a guideline for EB-2 positions without necessarily being binding. 35 hours a week does seem to be the standard minimum to be considered full-time for employment purposes.

Some experience gained that could qualify as progressive may not be full-time. In cases such as this substantial part-time experience may be counted towards the 5 years minimum at half time. For example, if an alien worked 20 hours a week for 10 years this could be considered equivalent to 5 years of full-time, 40 hours a week employment.

Experience Must be after Graduation

It is pretty straight forward in the language of the regulation that EB-2 qualifying experience must be obtained after graduating. No experience gained before graduating with a bachelor’s degree can be used in conjunction with the degree to qualify as an advanced degree equivalent. Even if an alien had 30 years of experience before graduating from a bachelor’s program, this experience will not count towards the advanced degree equivalence (such an experienced alien should probably apply for “exceptional ability” rather than an advanced degree EB-2).

Example:

Mary works for 3 years as a software engineer before getting a bachelor’s in computer engineering. After graduating and obtaining her bachelor’s degree Mary works for another 2 years. Mary’s employer files a PERM labor certification for her based on her bachelor’s degree and 5 years of experience. In this case, the PERM is approved and the employer files an EB-2, advanced degree I-140 for Mary. Once the USCIS looks at Mary’s I-140 they see that, while having 5 years of experience, only two of these years came after Mary’s obtaining her Bachelor’s Degree. USCIS determines that Mary does not meet the alternate education and experience standards for an advanced degree and her I-140 is denied.

Experience Must be Gained Prior to Initial Filing

The experience and education to be counted towards an advanced degree equivalent must be obtained before initial immigrant filing (the earlier of PERM or I-140 filing, depending on the type of petition).1 This means that before the date a PERM or I-140 is filed for a particular position an alien must have a bachelor’s and at least 5 years progressive post-graduation experience. For EB-2 cases based on labor certification the alien must meet all education and experience requirements by the date of PERM filing. For NIW EB-2 cases the alien must meet all education and experience requirements by the date of I-140 filing. Just because PERM and I-140 petitions are based on prospective employment (the alien does not have to start the job until a green card is obtained) does not mean that the alien has until the time of starting employment to complete the requirements for a position.

Example:

Nicholas is the beneficiary of an approved PERM labor certification for a position requiring a bachelor’s degree plus 5 years of progressive post-graduation experience. This position will qualify for EB-2. However, Nicholas does not have 5 years of experience at the time of filing the PERM application. He has a bachelor’s degree but has only worked for 4 years since graduating. Based on current backlogs in visa availability, Nicholas reasoned that he would obtain the extra year of experience before I-485 approval and the start of employment. The USCIS will discover, upon I-140 adjudication, that Nicholas does not currently (and did not have at the time of filing) the required experience for the EB-2 position. Thus, the I-140 will be denied.

The above example is an extreme one, where an EB-2 beneficiary will plan on meeting experience requirements by the time of I-485 adjudication. There are also cases where an alien may not have the required experience at the time of PERM filing but meets the requirements by the time of I-140 filing. A case in this situation may also be denied since the alien obtained the required experience AFTER initial filing. For regular EB-2 an alien must meet all the job requirements and stated education/experience minimums by the date of a PERM filing. For NIW cases the alien must meet the same requirements and minimums by the date of I-140 filing. No education or experience gained after these respective filings can be considered to qualify an alien for an EB-2 position.

A Quick Note about PhD Positions

There are two related situations where an alien will need to prove advanced degree equivalence: EB-2 I-140s based on approved PERM labor certifications, and National Interest Waivers (NIW). For I-140s being filed on behalf of alien beneficiaries where a NIW is not being sought, there is only advanced degree equivalence for a Master’s degree. A Bachelor’s degree plus 5 years progressive post-graduation experience will qualify an alien as a holder of an advanced degree for Master’s positions only. This means that if a PERM labor certification was approved where the position requires a PhD there is no combination of degree and experience that is equivalent to a PhD. If an employer sponsored petition requires a PhD, then an alien must actually possess such a degree. A Bachelor’s plus 5 years experience is equivalent to a Master’s, but a Master’s plus 5 years experience (or a Master’s plus 100 years for that matter) will NOT be considered equivalent to a PhD. This does not come up often, as an employer petitioning for an employee would have little reason to make the minimum requirements harder to meet than necessary.

Conclusion

The easiest way to qualify for an advanced degree position is to possess an advanced degree. There is little room for doubt whether or not such a degree meets the standards of an EB-2 position. If a master’s is required and you have a master’s: perfect! However, not everyone with the skills to qualify for an EB-2 position has obtained graduate level education. In these cases, an experienced immigration attorney may be needed in order to determine if all of the intricacies of a bachelor’s plus 5 years equivalent are met.

It is also important for a potential petitioning employer to contact an attorney early in the process if a PERM will be filed for an EB-2 position. If an alien will qualify for an EB-2 position thanks to a bachelors plus 5 years experience, it is important that this requirement be maintained uniformly from labor certification until green card approval. Just because a position qualifies as EB-2 does not mean that an alien will qualify for EB-2. Likewise, an alien may personally have experience and qualification that would allow him/her to meet EB-2 standards but the position being petitioned for may not count as EB-2 employment. This is true for all EB-2 cases, but is especially true for bachelor’s plus 5 years experience qualified aliens since there is so much more to keep in mind at every stage of the process.

It is recommended that any alien or employer thinking of applying or petitioning for an EB-2 position contact an experienced and competent immigration lawyer to ensure that advanced degree alternatives are meet satisfactorily and on time for immigration filings.

(Updated 10/1/2012 by AD)

1Some attorneys refer to this as the “priority date” rule, wherein an alien must meet education and experience requirements before the priority date of a case. This, however, is not entirely accurate. For initial filings it can be said that an alien must meet all stated requirements for a position or NIW before the priority date (since a priority date is established by the earliest filing of a PERM or I-140). But there are cases where a priority date can be maintained and new labor certification and I-140 petitions filed based on new education and/or experience. This would mean that if the “priority date” rule applied, no alien could ever change from EB-3 to EB-2 status and maintain the priority date in such situations (which is certainly not the case).

References:

USCIS Adjudicator’s Field Manual: Appendix 22-1 Education and Experience Requirements for EB-2 Immigrants

Code of Federal Regulations: 8 CFR § 204.2(k)(1)-(2)

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.