The 3-year degree problem in U.S. immigration law
November 19, 2021
Under U.S. immigration rules not all foreign undergraduate bachelor’s degrees are considered equal. Specifically, there are those that are deemed to be “equivalent” to a U.S. Bachelor’s degree, and there are those that are not.
This distinction can mean the difference between an individual qualifying for an employer-sponsored green card, and being found ineligible. Moreover, if the distinction is not understood early on the green card sponsorship process, an employer/employee can invest time and money in an application that is ultimately doomed to fail.
The Third Preference employment based green card category (“EB-3”) is open to “members of the professions with a U.S. baccalaureate degree or foreign equivalent” and to “skilled workers for positions that require two years of job experience, education, or training”. Both of these groups (“professionals” and “skilled workers”) also require labor certification, which is the process that an employer must undergo to demonstrate that no qualified U.S. workers can be found for the position for which the foreign applicant is being sponsored.
The labor certification process requires the employer to state the minimum requirements for the position for which sponsorship is being sought, and to demonstrate that the foreign national meets these minimum requirements. A common set of minimum requirements might be “a U.S. Bachelor’s degree in [X] or foreign equivalent and at least 12 months of work experience in the field of [Y] or [Z]”. These minimum requirements serve two purposes – firstly they permit the employer to assess whether a applicants are qualified for the job based on these “minimum requirements”, and secondly, they permit USCIS and the Dept. of Labor to determine whether the foreign national for whom sponsorship is being sought, meets these minimum requirements. If he/she does not, the whole green card application process fails.
These minimum requirements must be stated at the outset when the employer seeks a prevailing wage determination from the Dept. of Labor, which is a determination of the minimum wage the employer must pay for the position. The requirement then must be included when the employer advertises the job to determine if there are any qualified U.S. candidates, then subsequently when the actual certification is being sought from the Department of Labor that the job opening is one for which no qualified U.S. applicants are available, and finally when the employer seeks final approval from USCIS to hire the sponsored foreign employee for the role. If there is a flaw in these requirements at the outset, it cannot be fixed later on without starting the whole process again.
What sometimes happens is that the sponsored employee has an undergraduate degree which was completed in three years. Assuming this to be “equivalent” to a U.S. degree, the employer sets the minimum requirements for the role as a “U.S. Bachelor’s degree or equivalent”. The case continues through the Prevailing Wage Determination process, the employer then advertises the position for which no qualified applicants apply, and obtains labor certification from the Dept. of Labor. At the final step in the process (which is 18 months after the employer commenced the process) USCIS denies the employer’s petition to sponsor the employee on the basis that the employee doesn’t have the U.S. equivalent of a Bachelor’s degree, and therefore doesn’t meet the minimum requirements for the role. As these minimum requirements are locked in at the very beginning they cannot be later rectified. The employer has wasted 18 months. Had the employer set the minimum requirements as “U.S. Bachelor’s degree in X or foreign equivalent. A 3- or 4- year bachelor’s degree will be deemed equivalent to a U.S. Bachelor’s degree”, then the sponsored employee would be considered qualified based on the minimum requirements, and the position will qualify under the “skilled worker” category of the EB-3 classification, as two years of education are a prerequisite for the role.
To make matters more confusing, some 3-year undergraduate degrees can be considered equivalent to a U.S. Bachelor’s degree, while others are not. For example, some degrees from universities in England are considered equivalent, while those issued by universities in Scotland are generally not. The only way to know is to request an expensive evaluation from a professional degree evaluation company that references the AACRAO (American Association of Collegiate Registrars & Admissions Officers) EDGE database, which maintains a database of equivalencies. More confusing again is the fact that some 3-year degrees from India are not considered by AACRAO to be degrees at all, but rather periods of post-secondary study. If the sponsored employee has one such degree, the “minimum requirements” for the role would have to be reduced even further to merely three years of post-secondary education, as opposed to requiring a degree.
This issue is just one of many pitfalls that await the unsuspecting employer and demonstrates the importance of examining the employee’s degree at the outset of the process, to avoid submitting a petition that might ultimately be doomed to fail.
