sustained EB-2 Case: Computer Programming

.
U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-H-N-B-
Non-Precedent Decision of tfte 
Administrative Appeals Office 
DATE: MAR. 31,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner , a bank, seeks to employ the Beneficiary as a programmer /analyst senior. It requests 
classification of the Beneficiary as a member of the professions holding an advanced degree under the 
second preference immigrant classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2) , 8 U.S.C. § 1153(b)(2). This "EB-2" classification allows a U.S. employer to 
sponsor a professional with an advanced degree for lawful permanent resident status. A bachelor's 
degree alone does not qualify as an "advanced degree," but a bachelor's and an additional five years of 
post-baccalaureate progressive experience will suffice for EB-2 classification purposes. 
The Director of the Nebraska Service Center found that, based on the issuance date of the 
Beneficiary ' s bachelor 's degree diploma , the Beneficiary could not show, as required , a minimum of 
five years of post-baccalaureate experience to establish that she possesses the equivalent of an 
advanced degree. 
On appeal , the Petitioner contends that the Beneficiary does have the five years of post­
baccalaureate experience, which should be measured from when she received a provisional 
certificate demonstrating her degree was complete and approved and not from when the diploma 
itself was later issued. The appellate record includes additional evidence and an amicus brief. 1 
Upon de novo review , we will sustain the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor certification from the U.S. Department of Labor (DOL). 2 See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL 
certifies that there are insufficient U.S. workers who are able, willing, qualified, and available for the 
offered position and that employing a foreign national in the position will not adversely affect the wages 
1 
We thank the for its brief and have considered their points herein. 
2 The date the labor certification is filed, in cases such as this one, is called the "priority date." A beneficiary must be 
eligible as of that date, and so in this case the Beneficiary must have had the five years' requisite experience by the date 
the labor certification was filed. 
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Matter ofT-H-N-B-
and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)-(ll) of the 
Act. Second, the employer may file an immigrant visa petition with U.S. Citizenship and 
Immigration Services (USCIS). See section 204 of the· Act, 8 U.S.C. § 1154. Third, if USCIS 
approves the petition, the foreign national may apply for an immigrant visa abroad or, if eligible , 
adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
For this advanced degree professional position, the labor certification must provide that the job 
requires an advanced degree or its equivalent. See 8 C.F.R. § 204.5(k)(4)(i). In pertinent part, 
Department of Homeland Security regulations define the term "advanced degree" as: "[A ]ny United 
States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A 
United States baccalaureate degree or a foreign equivalent degree followed by at least five years ql 
progressive experience in the specialty shall be considered the equivalent of a master's degree. " 
8 
C.F.R. § 204.5(k)(2) (emphasis added). To be eligible for this EB-2 classification solely on the basis 
of a foreign degree equivalent of a U.S. bachelor's degree, a beneficiary must also possess five years of 
qualifying post-baccalaureate experience. 8 C.F.R. § 204.5(k)(3). 
II. ANALYSIS 
The Beneficiary possesses a bachelor's degree in engineering from 
in India. There is no question that the Beneficiary's degree qualifies her for EB-2 
classification or that her post-degree experience qualifies as progressive experience. The only 
question is when conferred the "degree" to the Beneficiary. More specifically, we explore here 
whether the five years of experience can be only measured from when she received the formal 
diploma itself, or earlier , when she completed all the requirements tor the degree and received what 
is commonly termed a provisional cert[ficate reflecting that her degree was approved. We conclude 
that, based on the specific circumstances and evidence in this case, the provisional certificate 
constitutes her official academic record of her "degree" for purposes of calculating the five-year 
period of post-graduate experience. 
Several dates are critical to this case. The Beneficiary's priority date (the date the labor certification 
was filed) is May 18, 2015. issued her a provisional certificate on October 15, 2008, but she 
did not receive her formal diploma until February 10, 2009. The record establishes that she accrued 
approximately four years and ten months of qualifying experience during this period between her 
diploma date and her priority date. The Director thus concluded that the Beneficiary fell just short of 
the five-year requirement and denied the petition. 
On appeal, the Petitioner maintains that the Beneficiary did accrue the requisite five years of post­
degree experience if we recognize that her "degree" was conferred on the earlier date of her 
provisional certificate , or October 15, 2008. The Beneficiary began working in a qualifying capacity 
a few weeks later, in November 2008, nearly three months before she received her formal diplonia. 
So the Beneficiary has the required five years ' experience if measured from the date of her 
provisional certificate , but not if measured from the date of her diploma . 
2 
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Matter ofT-H-N-B-
The statute and regulations governing the EB-2 classification speak in terms of "degrees," not 
diplomas. So, from the outset, it is clear that we cannot simply limit our analysis to the date on 
which a university confers a formal diploma on its newest alumni. Applicable EB-2 regulations 
reflect this distinction. For these EB-2 "bachelor plus five" petitions, the "initial evidence" rule 
requires submission of an "official academic record" showing the beneficiary has a foreign 
equivalent "degree." 8 C.P.R. § 204.5(k)(3)(i)(B). An "official academic record" is not limited to a 
formal diploma. 3 In fact, in the very next provision- relating to EB-2 exceptional ability petitions­
the initial evidence rule expressly distinguishes between degree and diploma: "[a]n official academic 
record showing that the alien has a degree. diploma, certificate, or similar award from a college , 
university, .... " 8 C.P.R. § 204.5(k)(3)(ii)(A) (emphasis added). 4 
Accordingly, we must conduct a case-specific analysis to determine whether, at the time a 
provisional certificate is issued, the individual has completed all substantive requirements to earn the 
degree and the university has approved the degree. We must consider the individual nature of each 
university's or college 's requirements for each program of study and each student's completion of 
. those requirements. A petitioner will bear the burden to establish that a beneficiary's provisional 
certificate reflects that , at the time the certificate was issued, all of the substantive requirements for 
the degree were met and the degree was in fact approved by the responsible university body.
5 
Here, the record demonstrates that, by issuance of the provisional certificate in October 2008, the 
Beneficiary had completed all substantive requirements and the university had in fact approved the 
degree. The record contains the following university documents contemporaneous with the relevant 
events: (1) a copy of the Beneficiary's statement of marks; (2) a copy of the Beneficiary's 
provisional certificate issued on October 15, 2008, which states that the Beneficiary is "qualified for 
the award of the degree of bachelor of engineering" and that the Beneficiary "passed the prescribed 
examination;" and (3) a copy ofthe Beneficiary's diploma that issued on February 10,2009. 
Finally, we have turned to information publicly available from the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global 
3 See also USC IS Adjudicator ' s Field Manual, Appendix 22-1 , Memorandum from Michael D. Cronin, Acting Associate 
Commissioner , USCIS HQ 70/6.2, Educational and Experience Requirements/or Employment-Ba,sed Second Preference 
(EB-2) Immigrants (March 20, 2000), https://uscis .gov/i link/doc View/ AFM/HTM Ll AFM/0-0-0-1 /0-0-0-26573 /0-0-0-
31l07.html (last visited Mar. 30, 20 17), ("Whether the alien beneficiary possesses the advanced degree should be 
demonstrated by evidence in the form of a transcript .fi'om the institution that granted the advanced degree. An 
adjudicator must similarly consider the baccalaureate transcript .... ") (emphasis added). 
4 
While this provision helps clarify that the terms degree and diploma are not equivalent, we note generally that, in 
contrast to the advanced degree category, the EB-2 exceptional ability category is not grounded entirely in an academic 
award and thus its initial evidence rule is more expansive than that of the advanced degree category. 
5 
Along with any other proffered evidence, petitioners must also 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 . See 
8 C.F .R § 204 .5(k)(3) (requiring the submission of an official academic record as evidence of a beneficiary ' s possession 
of an advanced degree or equivalent of an advanced degree) . 
3 
Matter ofT-H-N-B-
Education (EDGE), 6 and note that it accords with the Petitioner's claim and evidence. On the matter 
of provisional certificates issued by Indian universities, AACRAO EDGE states: 
The Provisional Degree Certificate is evidence of completion of all requirements for 
the degree in question, the name of the degree and the date upon which it was 
approved by the responsible university governing body, and is comparable to an 
official US academic transcript with a degree statement certifying completion of all 
requirements for the degree, the name of the degree and the date upon which it was 
approved by the academic senate at universities in the United States. 7 
EDGE additionally notes that some students never receive their "final Degree Certificate," but 
instead rely on the provisional degree certificate as evidence of degree completion. /d. 
III. CONCLUSION 
The provisional certificate, together with her statement of marks, demonstrates that the Beneficiary 
completed all the substantive requirements and that the university approved her degree. The final 
diploma here was simply a delayed formality. We find that the issuance of the provisional certificate 
conferred on the Beneficiary the foreign equivalent of a bachelor's degree. Applying the provisional 
certificate date, we also find that she obtained at least five years of qualifying post-baccalaureate 
experience. Accordingly, the Petitioner has established that the Beneficiary meets the minimum 
education and experience requirements of the labor certification and of EB-2 classification. 
ORDER: The appeal is sustained. 
Cite as Matter ofT-H-N-B-, ID# 12369 (AAO Mar. 31, 2017) 
6 AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher education professionals who 
represent approximately 2,600 institutions in over 40 countries." http://www4.aacrao.org/centennial/about.htm (last 
visited Mar. 30, 20 17). According to its registration page, EDGE is "a web-based resource for the evaluation of foreign 
educational credentials." http://edge.aacrao.org/info.php (last visited Mar. 30, 20 17). 
7 
See India: Provisional Degree Certificate, AACRAO, http://edge.aacrao.org/country/credentiallprovisional-degree­
certificate (last visited Mar. 30, 20 17). 
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