The Appeal Decision
The specific decision (with identifying information redacted for privacy purposes) can be found here. This decision is a helpful example of the kind of language used in the approval and appeal process of an employment-based visa. Additionally, it provides good information and clarification regarding the definition of foreign equivalent degree, Department of Labor (DOL) certification requirements, and the logistics that impact the review of an appealed decision.
In this case, the petitioner held a baccalaureate degree from an Indian university and also had been awarded certification and membership in the Institute of Chartered Accountants in India (ICAI), a professional organization of India. The argument presented in the petition was that the petitioners membership in ICAI required additional years of study and passing of examinations related to their professional field. According to the petitioner, the additional studies and expertise required for their acceptance into ICAI should have been considered sufficient to qualify them as an “advanced-degree holder”, as defined in the requirements for the EB-2 visa application.
The decision of the AAO stated that although the petitioner did meet the requirements for work experience, they did not meet the requirements for holding a degree which was equivalent to a United States baccalaureate degree. As discussed in previous articles, this was due to the fact that the petitioner held a 3-year baccalaureate from a university in India, which is not considered equivalent to a 4-year U.S. baccalaureate degree.
Requirements for Advanced-Degree Recipients
The main basis for the decision by the AAO was that while the ICAI did require additional study and examination, ICAI is a professional and not an academic institution. Because of this, it is not qualified and does not claim to award degrees. So, while the study that the petitioner completed may ultimately provide the same professional skill-set and knowledgebase as a degree, it is not an actual degree. In order to meet the requirements of an “Advanced-Degree Holder” the petitioner would need to complete additional education, likely through an U.S. college or university, in order to gain a degree which is equivalent to a U.S. baccalaureate degree.
Employment-based Immigration Process
Some other interesting information included in this decision is clarification the three-step process of employment-based immigration. The first step is that the Department of Labor determines is that there are “insufficient U.S. workers who are able, willing, qualified, and available for the position and that employing a foreign national in the position will not adversely affect the wages and working conditions of U.S. workers similarly employed”.
The second step of this process is that the employer files the immigration visa petition with USCIS. Finally, if that petition is approved by USCIS, the individual may apply for an immigrant-abroad visa or adjustment of U.S. immigration status.
This process may be tedious and requires the coordination of several offices and entities in order to successfully complete the certification and visa application process. It is possible for the petitioner to avoid the DOL certification process through approval of a “National Interest Waiver” (NIW). As discussed in other articles, in order to be approved for the NIW, the petitioner must demonstrate that:
- The proposed endeavor has both substantial merit and national importance
- The applicant is well positioned to advance the proposed endeavor
- It would be beneficial to the United States to waive the requirements of a job offer and labor certification requirement.
An individual applying for the NIW must still meet the requirements for being an
“advanced-degree holder” or a person of exceptional ability with a U.S. or equivalent baccalaureate degree. It’s important to recognize that in the case we are reviewing, the petitioner still would have to provide documentation that they held a U.S. baccalaureate or foreign equivalent, which they were unable to do.
AAO appeal and denial process
An interesting aspect of this specific case is that an earlier petition by the individual was approved based on what the AAO calls a “non-precedent” decision. Basically, this means that the initial approval of the petition was made on an incorrect interpretation of the evidence or that the decision made was not consistent with the usual interpretation, or precedent, of USCIS. In this case, a previous review of the petition found that ICAI membership constituted sufficient education to be considered equivalent to a U.S. baccalaureate degree. Unfortunately, based on previous decisions made by USCIS, some specifically related to ICAI membership, the requirement was not met because the petitioner did not hold a U.S. Baccalaureate or foreign equivalent degree awarded by an appropriate institution.
Unfortunately, in the examined case, this petitioner did not have an ideal outcome of the employment-based visa application and appeals process. This case underscores the importance of having a firm understanding of the requirements when applying for an employment-based visa. Additionally, it emphasizes the need to utilize appropriate resources when applying for your employment-based visas. An experienced immigration attorney, credential evaluation service, and support and assistance from various organizations specializing in assisting individuals seeking U.S. visas can all help to ensure a positive outcome, and provide support during the challenging process of furthering your professional and personal goals.
If you have any comments or questions related to our credential evaluation process for a case like this, you can contact us for more information, or leave a comment down below!