sustained EB-2 Case: Information Technology

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\ 
U.S. Citizenship 
and Immigration 
Services 
MATTER OF 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 12, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 
I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a con:!_puter devices and services business, seeks to employ the Beneficiary as an "IT 
Service Engineer II- Corporate Functions IT or other." It requests classification of the Beneficiary as 
a member of the professions holding an advanced degree under the second preference immigration 
classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1152(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 he possesses the equivalent of an 
advanced degree. 
On appeal, the Petitioner contends that it has established that the Beneficiary has the required five 
years of progressive post-baccalaureate experience, as the Beneficiary earned his degree before his 
diploma was formally issued. -
Upon de novo review, we will sustain the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First, an employer must obtain an 
approved ETA Form 9089, Application for Permanent 
Employment Certification (labor 
certification) from the U.S. Department of Labor (DOL). 1 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 
1 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 Beneficiar y must have had the five years of requisite experience by the 
date the labor certification was filed. 
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Matter of 
employing a foreign national in the position will not adversely affect the wages and working conditions 
of domestic workers similarly employed. See section 212(a)(5)(A)(i)(I)-(II) 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 must 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 an advanced degree professional position, the underlying 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, U.S. 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 jive years of 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 of technology in electrical and electronics engineering degree 
from in India. The record establishes that the Beneficiary's degree is equivalent 
to a U.S. bachelor's degree and that his post-degree experience qualifies as progressive experience. 
The only question is when conferred the Beneficiary's "degree," and when he 
began to accrue qualifying experience. 
Several dates are critical to this case. The visa petition's priority date is September 29, 2015. 
issued a provisional certificate to the Beneficiary on June 15, 2004, but did not 
provide him with a diploma until March 22, 2010. The record establishes that the Beneficiary has 
over six and a half years of related experience gained between August 3, 2007, and March 7, 2014. 
However, the Director found that the Beneficiary only accrued approximately 3 years and 11 months 
of qualifying experience between his diploma date and the priority date of the visa petition. The 
Director accordingly concluded that the Beneficiary fell short of the five-year post-baccalaureate 
experience requirement and denied the petition. 
On appeal, the Petitioner maintains that the Beneficiary does have the reqms1te five years of 
post-degree experience if we recognize his "degree" as having been conferred as of the date of his 
provisional certificate. 
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 limit our analysis in this case to the date on 
which a university confers a formal diploma. Applicable EB-2 regulations reflect this distinction. 
For EB-2 "bachelor plus five" petitions, the "initial evidence" rule requires the submission of an 
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"official academic record" showing that a beneficiary has a foreign equivalent "degree." 8 C.F.R. 
§ 204.5(k)(3)(i)(B). An "official academic record" is not limited to a formal diploma? 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, or similar award from a college, university .... " 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) (emphasis added).3 
Accordingly, we must conduct a case-specific analysis to determine whether, at the time a 
provisional certificate is issued, a beneficiary 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 bears 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 that the degree was approved by the responsible university body.4 
Here, the record demonstrates that, as of the issuance of the provisional certificate on June 15, 2004, 
the Beneficiary had completed all substantive . requirements of the degree and that 
had approved the degree. The record contains the following documents contemporaneous 
with relevant events: a copy of the Beneficiary's provisional certificate, dated June 15, 2004, which 
states that he "has passed the Bachelor of Technology examination of this University held in April 
2004;" copies of the Beneficiary's "Memorandum of Marks" for the years he attended 
which reflect that he passed all courses; and a copy of the Beneficiary's bachelor of 
technology in electrical and electronics engineering diploma, issued on March 22, 2010. In addition, 
the Petitioner submitted a statement from the controller of examinations at who 
states that the university awarded the Beneficiary the provisional certificate on June 15, 2004, "as he 
passed all required examinations and completed all degree requirements at that time." The controller 
of examinations further indicates that does not issue provisional certificates to 
its students until all degree requirements have been completed and all "dues" have been cleared. 
The controller further explains that a provisional certificate can only be issued after a student has 
been approved to graduate by the university. 
2 
See also USCJS Adjudicator's Field Manual, Appendix 22-1, Memorandum from Michael D. Cronin, Acting Associate 
Commissioner , USCIS HQ 70/6.2, Educational and Experience Requirements for Employment-Based Second Prefer ence 
(EB-2) Immigrants (March 20, 2000). https://uscis.gov/ilink/docView/ AFM/HTMLI AFM/0-0-0-l /0-0-0-26573 /0-0-0-
31 107.html (last visited Apr. 4, 2017), ("Whether the alien beneficiary possesses the advanced degree should be 
demonstrated by evidence in the form of a transcript from the institution that granted the advanced degree. An 
adjudicator must similarly consider the baccalaureate transcript .... ") (emphasis added) . 
3 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. 
4 
Along with any other proffered evidence, a petitioner must also submit a copy of a beneficiary 's statement of marks or 
tran~cript 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) . 
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Finally, we have considered information available from the American Association of Collegiate 
Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education 
(EDGE), 5 and find it to support the Petitioner's claim and evidence. On the matter of provisional 
certificates issued by Indian universities, 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.6 
We also note that EDGE reports that some students never receive their "final Degree Certificate," 
but instead rely on their provisional degree certificate as evidence of degree completion. !d. 
III. CONCLUSION 
The Beneficiary's provisional certificate, together with his memorandum of marks, demonstrates 
that the Beneficiary completed all substantive requirements of the degree and that the university 
approved the degree, as of the date the· provisional certificate was issued. We therefore find the 
Beneficiary to have earned the foreign equivalent degree to a U.S. bachelor's degree as of June 15, 
2004. Applying the date of the provisional certificate, we also find the Beneficiary to have at least 
five years of qualifying post-baccalaureate employment experience as of the priority date. 
Therefore, the Petitioner has established that the Beneficiary meets the academic and experience 
requirements of the labor certification and for EB-2 classification. 
ORDER: The appeal is sustained. 
Matter of. , ID# 268467 (AAO May 12, 2017) 
5 AACRAO is "a nonprofit, voluntary, professional association of more than 11,000 higher· educational professionals 
who represent approximately 2,600 institutions in more than 40 countries. http://www4.aacrao.org/centennial/about.htm 
(last visited Apr. 4, 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 Apr. 4, 2017). 
6 See India: Provisional Degree Certificate, AACRAO, http://edge.aacrao.org/country/credential/provisional-degree­
certificate (last visited Apr. 4, 2017). 
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