International Medical Graduates Eligible for EB2 Classification

An International Medical Graduate (IMG) educated in a country such as India faces an immigration hurdle because, unlike in the United States, s/he does not have to hold a bachelor’s degree as a prerequisite to admission to medical school. The U.S. Citizenship and Immigration Services (USCIS) was issuing denials of I-140 petitions for these physicians on the theory that their educations did not meet the employment-based, second preference (EB2) standard of an advanced degree. MurthyDotCom and MurthyBulletin readers were alerted to this complication, in our December 12, 2008 article, Indian Medical Degrees NOT EB2 Advanced Degree, Per USCIS. In response to the resulting outcry and arguments from many of the affected IMGs, the USCIS issued revisions to the Adjudicator’s Field Manual (AFM) in June 2009. A summary follows.

Basic Requirements

In a PERM labor certification-based permanent residence case, the employer must obtain a labor certification approval from the U.S. Department of Labor (DOL). Thereafter, the employer must file the I-140 petition. It is at this point that the USCIS evaluates whether the case fits within EB2. In cases filed for physicians, the USCIS must determine if the individual is “a member of the professions possessing an advanced degree or foreign equivalent degree.” It is also necessary to demonstrate that, as of the date the labor certification application was filed, the individual met all the education, training, and experience requirements for the offered job.

New Guidance on Equivalence to U.S. Advanced Degree

The revised USCIS guidance explains that many countries do not have the same system for medical education as the United States. Many do not require a bachelor’s degree for admission, but have a single degree program. Foreign medical school programs are longer than the standard U.S. or foreign bachelors’ degrees. The AFM revisions now make it clear that an individual can satisfy the requirement of holding an advanced degree if s/he holds a foreign degree that is evaluated as equivalent to a U.S. master’s degree or higher. The USCIS can favorably consider credentials evaluations prepared by independent credentials evaluators. The USCIS is to consider these evaluations, along with their own review of the individual’s qualifications and other available credible resources regarding educational equivalency. It is also possible to meet the EB2 requirement if one has a foreign medical degree and has passed the U.S. Medical Licensing Examination (USMLE), steps I, II, and III.

As mentioned, the other basic requirement for I-140 approval is that the individual is fully eligible for the position as of the time when the labor certification is filed. In order to establish this for a physician, it is necessary to demonstrate that s/he had an unrestricted license to practice medicine, or that s/he meets the requirements for full, unrestricted licensing in the area of intended employment.

Fixing Wrongful Denials

The guidance states that it is possible to file new, amended I-140 petitions for any case that may have been wrongly denied, based upon the revised USCIS guidance. However, the USCIS will not accept late motions to reopen / reconsider I-140 denials or revocations based upon the revised guidance. Hopefully, individuals who received such denials took appropriate action to contest those decisions when they occurred.

Conclusion

The USCIS guidance should serve to resolve the problems that arose regarding the EB2 category for IMGs. We at the Murthy Law Firm are pleased that the USCIS issued this revised guidance. Our attorneys are available to help IMGs with their immigration matters.