On April 17, 2017, the Administrative Appeals Office (AAO) designated its opinion in this case as an Adopted Decision, establishing policy guidance binding all USCIS employees. The decision holds that USCIS must conduct a case-specific analysis as to whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the college or university has approved the degree. Where the petitioner can establish that, as of the date of the certificate’s issuance, the beneficiary had met all substantive requirements for the degree and the degree was approved, USCIS will use the date of the certificate’s issuance to calculate post-baccalaureate experience.
Initially, the opinion set forth the 3-step process of employment-based immigration: the approval of a labor certification; the filing of the I-140 visa petition by the employer; and, after the petition’s approval, the application for an immigrant visa or adjustment of status. It then noted that advanced degree professionals under the Employment-Based (EB) 2nd preference must show that the labor certification application required an advanced degree “or its equivalent”, stating that a U.S. baccalaureate or foreign equivalent followed by at least 5 years progressive experience shall be equivalent to a master’s degree, e.g., an “advanced degree.” Thus, to be eligible for EB-2 classification solely on the basis of a foreign degree bachelor’s equivalent, the beneficiary “must also possess 5 years of qualifying post-baccalaureate experience.”
In its analysis, the AAO pointed out that the beneficiary had a bachelor’s degree from a technological university in India; the sole issue was when the degree was issued, i.e., after which date her progressive experience in terms of EB-2 qualification may be calculated. The opinion framed the legal question as whether the 5 years of experience is measured from when the beneficiary received the formal diploma or earlier, when she completed all requirements for the degree and received a provisional certificate reflecting that the degree was approved. In this particular case, the AAO concluded, the certificate constitutes an official academic record of her “degree” for purposes of calculating post-graduate experience.
The AAO thus held that USCIS most conduct a case-specific analysis to determine whether, at the time a provisional certificate is issued, the beneficiary has completed all substantive requirements to earn the degree and the school has approved the degree, Evidence regarding the individual nature of each institution’s requirements for the program of study and completion of those requirements must therefore be considered. Further, stated the decision, the burden is on the petitioner to show that the certificate reflects that, at issuance, all substantive requirements for the degree were met and the degree was approved by the responsible college or university body. (A footnote requires that, in such cases, petitioners submit a copy of a beneficiary’s “statement of marks or transcript to demonstrate years of study, and coursework completed, along with a copy of the provisional certificate.”) Because the record confirmed that, as of the date of the certificate’s issuance, the beneficiary had completed all substantive requirements for the degree and the university had approved the degree, and the AACRAO EDGE website confirmed such certificates’ recognition, the AAO found that the beneficiary had obtained the required 5 years experience beginning with issuance of the provisional certificate and had thus established EB-2 qualification, sustaining the appeal. Matter of O-A-, Inc., Adopted Decision 2017-03 (AAO Apr. 17, 2017).
