Murthy Takes Action : Education Abroad and I-140s
Posted May 02, 2003

The Law Office of Sheela Murthy has obtained information that may prove helpful to many whose I-140 petitions are pending with the BCIS or those whose I-140s were previously denied, because of the absence of a four-year degree from a foreign university. Attorneys in our firm took the initiative to contact the INS/BCIS (Service) and we have now obtained a favorable interpretation from the Service in the form of a letter opinion received by our law firm. We recently were granted permission to release a January 7, 2003 INS (now BCIS) letter defining the term "a foreign equivalent degree" for purposes of the employment-based second preference category (EB2) or employment-based third preference (EB3) category. The need for clarification arose because the EB2 category is for members of the professions holding advanced degrees or persons of exceptional ability. The advanced degree is defined as a U.S. academic or professional degree or a "foreign equivalent degree" beyond that of a baccalaureate. Also included in the EB2 and EB3 categories are individuals with baccalaureate degrees or "foreign equivalent degrees" and, in the case of the EB2, the education is followed by at least five years of progressive experience. In the latter situation, the bachelor's degree (or foreign equivalent) plus five years of relevant experience is deemed equivalent to an advanced degree.

Some BCIS officers and Service Centers were interpreting the phrase "a foreign equivalent degree" in the EB2 / EB3 context to be exclusively limited to situations in which single degrees were issued that were equivalent to the U.S. baccalaureate degree. This would disqualify many individuals who held a combination of degrees or Diplomas or other certifications that, taken together, equaled the requirement of a U.S. degree. Efren Hernandez III, then INS Director, Business and Trade Services, clarified that the term "degree" is not limited only to cases in which one has a single degree from a single educational institution. For example, a person with a three-year degree in mathematics from a university in India and a one-year diploma in computer science from a vocational institution who is found by an accredited evaluations company to have the equivalent of a 4-year computer science degree from an accredited university in the U.S. now may obtain the I-140 petition approval. In the last two or three years we have seen the INS/BCIS deny such cases. We now learn that, based on the efforts of The Law Office of Sheela Murthy, the educational requirement on the labor certification forms may be satisfied with the combined studies from several institutions, as long as that education is assessed by a credentials evaluation service and found to be equivalent to a U.S. degree.

Mr. Hernandez also clarified that the five years of experience may be accrued either in the U.S. or abroad. However, for this requirement an actual baccalaureate degree or its foreign equivalent is required. Unlike some other provisions of U.S. immigration law, it is not possible in this case to substitute experience for education in order to meet the baccalaureate degree requirement.

This clarification will benefit many who have experienced problems or denials due to the nature of their educational credentials. This letter should be very helpful in obtaining approvals for those who are now eligible. We saw approvals soon after our Office obtained this opinion letter from Mr. Hernandez. We thank Mr. Hernandez for his willingness to clarify this important issue for our law firm. It can now benefit our clients as well as thousands of other eligible professionals in obtaining I-140 approvals in the appropriate category from BCIS based, on their education from different educational institutions.