TSC Denies EB3 I-140 Based on Degree Equivalency Issue
On December 18, 2007 the USCIS Texas Service Center (TSC) denied an EB3 I-140 petition, stating:
[T]he petitioner was notified through a request for evidence that, if the labor certification indicates a Bachelor's degree is required, but fails to indicate that an equivalent, with elaboration on the meaning of equivalent, is acceptable, then the alien must have a Bachelor's degree or a foreign equivalent degree and the position is classified as a professional. Furthermore, a Bachelor's degree is generally found to require four years of education . . . the petition is hereby denied based on the fact that the beneficiary does not have a four year bachelor's degree as required by the ETA 750. In Matter of Shah, the Regional Commissioner declined to consider a three-year Bachelor of Science degree from India as the equivalent of a United States baccalaureate degree because the degree did not require four years of study. Matter of Shah, 17 I&N Dec at 245. Based on the same reasoning, the Service will not consider the beneficiary's three-year Bachelor of Business Administration degree . . . to meet the four years of college requirement or to be the required foreign equivalent degree to a United States baccalaureate degree for purposes of this preference visa petition. The Service rejects counsel's contention that an 'x' under 'college' in the ETA 750 means less than 4 years of college is required.
The TSC also rejected a second credential evaluation submitted in response to the RFE that found that the three-year Indian degree is 120 hours of college credits, stating
[t]he validity of the second credential evaluation is questionable, based on the fact that the petitioner first filed the petition as a skilled worker with an evaluation indicating the beneficiary qualifies for the position with a combination of degree and work experience; however, once the beneficiary's qualifications are questioned, the petitioner indicates the beneficiary qualifies as a professional and the degree he possesses is equal, in credit hours, to a United States baccalaureate degree. It is not sufficient for the petitioner to merely submit new evaluations that provide an analysis that now meets the requirements of Form ETA 750.
The attorney of record in this case, Gerald M. Chapman, has appealed the TSC's decision to the AAO.
Commentary: A year ago TSC was approving most cases with facts similar to those described above. Even then, it appeared that the climate at TSC might be changing, and that TSC would eventually align itself to the strict position on degree equivalency being applied by the NSC and the AAO as expressed in this decision. The appeal in this case is based on the novel argument (rejected by the TSC) that on Form ETA 750 Box 14 the number of years of college required was indicated as "x" rather than "4," which is a clear indication that a bachelor's degree of less than 4 years was acceptable. The "x" argument appears to be stronger than the "or equivalent" argument that was successful in the federal court decisions in Grace Church and SnapNames cases because it is a clearer indication of the petitioner's intent that something other than a 4 year bachelor's degree would be acceptable, and more effectively refutes the government's presumption that a 4 year degree is required. Thus, the "x" argument could very well be effective in federal court; approval by the AAO may also be possible, but only time will tell.
A second point worth noting here is that submitting a second credential evaluation that is not consistent with the original credential evaluation filed with the petition can result in undermining the credibility of both evaluations.