Professionals with advanced degrees who wish to file for an EB-2 immigrant visa do so most easily when they already hold an advanced degree. In these cases, simply providing evidence of graduation with an advanced degree usually suffices. However, what is less known is that the alien may not necessarily need to hold a Master’s or higher degree in order to qualify for an EB-2 filing. In certain cases, aliens that hold a Bachelor’s degree plus five years of progressive post-graduation experience in a related job field may meet the EB-2 advanced degree requirement sufficiently.
Problems with an EB-2 and I-140 Filing
Problems sometimes arise when filing an I-140 in this manner. This article will deal with some of the most common issues that relate to filing an EB-2 application using a Bachelor’s degree with related work experience.
Qualifying for Progressive Work Experience
For a bachelor’s degree holder to count as an advanced degree professional, and therefore qualify for an EB-2 including a National Interest Waiver, there must be proof of at least five years of post-graduate progressive work experience in a related field. Unfortunately, there is no official definition of “progressive work experience.” Even USCIS adjudicators do not have such concrete guidelines.
These applications can can be bad because the applicant will worry more about whether their particular post-graduate work experience meets the progressive requirement. They can also be good because if the UCSIC does not have an official definition of the term progressive, then some latitude exists for evaluation. To learn about the full documentation this kind of case typically requires, please visit our firm’s information page.
An Easy Way to Document Progressive Work Experience
For all practical purposes, the term progressive experience means the employee continued to learn and grow in knowledge and skills throughout the five-year work period. Perhaps the easiest way to document such progressive experience is to look at employee pay over the five-year period. Submitting copies of pay stubs that highlight increasing pay (i.e. more pay for more complex work) over a period of five years can be proof. As well, documenting a succession of job titles that reflect regular promotions can serve as proof of progressive rather than static experience.
Equivalent Work Experience Must be Full-Time to Meet EB-2 Criteria
In order for a Bachelor’s degree holder to qualify as an advanced degree professional without the actual advanced degree, the qualifying work experience MUST BE full-time. Here again, the DOL and USCIS are not precise in their definition of full-time employment. For positions at the EB-5 and EB-4 levels, USCIS views weekly work hours of 35 hours or more as adequate qualifications. The DOL thus far has chosen not to define what full-time means, which can be particularly inconvenient if labor certification is also required to qualify for a position. These types of definitions of the term full-time relate to specific categories of visas. As such, they can serve as guidelines for EB-2 positions without having a binding effect. Across the board, 35 hours per week appears to be a standard minimum to meet the requirements of full-time for the purposes of employment.
Also, some work experience that could be considered progressive may not qualify as full-time. In these cases, it may be possible for substantial part-time experience to qualify the alien at half-time. Say the alien worked 20 hours per week over a 10-year period. This might be considered commensurate to five years of progressive work experience at 40 hours per week.
Progressive Work Experience Must Be Post-Graduate
Regulation language clearly specifies that any EB-2 level progressive work experience submitted must have been obtained after graduation. No work experienced gained prior to earning a Bachelor’s degree will be considered. Even if the alien applicant has gained 30 or more years of progressive work experience before graduation with a Bachelor’s degree, this work experience still would not be counted. In these circumstances, our firm would likely counsel the applicant to pursue an “exceptional ability” rather than an advanced degree EB-2.
All Work Experience Must Be Gained Before the Initial EB-2 Filing
All education and work experience an applicant wishes to submit as proof of an advanced degree equivalent must have been obtained prior to the initial immigrant filing (this would be the earlier of PERM or I-140 filing, depending on the petition type). In short, the alien applicant must have obtained a Bachelor’s degree and a minimum of five years of progressive post-graduation work experience prior to filing their PERM or I-140. In cases of an NIW EB-2 filing, the alien applicant must meet both the education and work experience requirements by the date the I-140 is filed. Here, just because petitions for PERM and I-140 positions are based on prospective (or post-green card) employment, this does not mean the alien applicant has extra time to meet the minimum requirements.
There may also be cases where the alien applicant does not meet the experience requirement at the time of the PERM filing, but does fulfill the requirement prior to or at the time of the I-140 filing. Here, the case is likely to be denied since the applicant obtained the required minimum experience post-initial filing. For a regular EB-2, the alien applicant must meet all the education and work experience minimums plus all the job requirements by the date of the PERM filing. For NIW cases, the applicant must meet all of the minimums and requirements by the I-140 filing date. No education or progressive work experience gained after the filing date for EB-2 or PERM filings may count towards qualifying for the EB-2 position.
A Note About PhD Position Candidates
In addition to the above, for EB-2 I-140’s based on approved PERM labor certifications, and for NIWs, the alien applicant will also need to prove advanced degree equivalence. For I-140’s where a NIW is not being sought, applicants must only meet the advanced degree equivalent requirement (a Bachelor’s degree plus five years of progressive post-graduation work experience in a related field will qualify the alien applicant). However, if a PERM labor certification has been approved for a position that requires a PhD, there is currently no combination of minimum degree plus progressive work experience that is considered the equivalent of a PhD.
The simplest way to qualify for an advanced degree position is to possess the required advanced degree. So if the applicant has a Master’s degree for a position that requires a Master’s degree, the application process becomes much easier! However, not every applicant for an EB-2 position possesses both the required Master’s degree and the necessary work skills. In such cases, our firm recommends retaining the services of an experienced immigration attorney to determine whether all of the minimum requirements are able to be met.
In other words, just because an EB-2 position is being sought does not automatically guarantee the alien applicant will be able to meet the position’s EB-2 qualifications. Likewise, an alien applicant may possess all of the education and/or progressive work experience minimums required to meet EB-2 standards, but perhaps the position being sought does not meet EB-2 qualifications. This holds true for all EB-2 cases, but may be especially true in cases where the applicant is applying with a Bachelor’s degree plus five years of minimum progressive work experience. This is because the considerations for this type of EB-2 application are open to much broader interpretation.
We Are Ready To Assist You!
Any applicant or interested employer who wishes to apply or petition for an EB-2 position should consider securing qualified legal assistance in order to ensure that all immigration filing requirements are met in full and on time. Pride Immigration Law Firm PLLC offers full support for EB-2 visa filings. Our experienced immigration law attorneys are prepared to guide you through the entire process from start to finish. We offer consultations for employers and applicants via phone or at our office. Call our firm or send us a message online to schedule your consultation today.
Beeraj Patel, Esq.
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