Published on    30 June 2014     Hits: 7543  

Nearly everyday, someone asks me or rather makes a statement to me.  'I have a Master’s degree (or a Bachelor’s plus 5 years experience); so I can go for the EB2 case and get the green card within a year, correct?'
 
As anything in law, my unfortunate and probably frustrating answer is “It depends.”   Here is why.
 
Let me first explain why EB2 categorization matters.  US immigration laws limit the number of immigrant visas (“green cards”) per year, per category, and per nationality in order to control the flow of the immigration and maintain certain diversity in our population.  
 
Out of a dozen paths towards obtaining green cards, employment-based second-preference (EB2) and third preference (EB3) categories are two most commonly used categories by foreign workers.  While EB-2 is the category for jobs that require a Master's degree or the equivalent (example: a Bachelor's degree plus 5 years' previous experience), EB-3 is the category for jobs that require a Bachelor's degree (or even if no bachelor's degree is required, a job that requires 2 years' previous experience).
 
As one can see there are more jobs that require simply a Bachelor’s degree or previous experience than those that require a Master’s degree or the equivalent.  Therefore, EB3 is even more common, and the number of applicants is much higher than the number of available green cards in the EB3 category.  In contrast, the number is about even in the EB2 category for most countries (other than China and India) and there is no wait for visa availability.
 
This means in practical terms that it takes maybe 5-7 years to obtain green cards through the EB3 category whereas it takes typically 1-2 years to obtain green cards through the EB2 category.
 
Having established the importance of EB2 categorization, then is any job that requires a Master’s degree or the equivalent qualify for EB2?  That is, as long as the foreign beneficiary has a Master’s degree or the equivalent?  
 
The answer is rather complicated and let me explain through a few examples.A has a Master’s degree in Chemical Engineering and is offered a lab technician position at a large hospital.  The hospital generally hires applicants with a Master’s degree in Chemical Engineering or related area, but its official minimum requirement is a Bachelor’s degree.  In this case, because the employer’s own minimal requirement only suits EB3, and so A’s case may not proceed as an EB2 case.
 
B has a Master’s degree in Early Childhood and is offered a nanny position by a family that wishes to provide the best possible environment to their child.  The family will not accept anyone with a lesser educational qualification.  In this case, the employer’ own minimal requirement suits EB2 categorization, but the case may not proceed as an EB2 case because this family’s requirement clearly exceeds the normal range of requirements the Department of Labor (DOL) has assigned to a nanny position.
 
Please note that DOL’s role in the immigration process is to protect the US labor market; in order to ensure that the sponsor does not reject a ‘qualifying’ US applicant in favor of a foreigner by increasing the minimal requirement, DOL has assigned a normal range of requirements per occupational category.  For a nanny position, DOL states training in vocational schools, related on-the-job experience, or an associate's degree is with a normal range of requirements.
 
Now, let’s go to a brain teaser example.  C has a Bachelor’s degree in Accounting plus 5 years progressive experience and is offered an accountant position.  The employer’s own minimal requirement is a Bachelor’s degree plus at least 5 years related experience.  In this case, the employer’ own minimal requirement suits EB2, but what about DOL’s normal range of or requirements?   DOL has assigned to this position a bachelor’s degree or up to two years experience following a bachelor’s degree or a Master’s degree to be within a normal range of requirements.  
 
Please note DOL does not equate a Master’s degree with a Bachelor’s degree plus 5 years’ experience.  Rather, DOL equates a Master’s degree with a Bachelor’s degree.  “Wait a minute”, any intelligent reader must wonder, “Did you not say,  EB-2 is the category for jobs that require a Master's degree or the equivalent (example: a Bachelor's degree plus 5 years' previous experience)?”  That is the standard the U.S. Citizenship and Immigration Services (USCIS) follows.  DOL has a slight different standard, and it will decide that the above requirement – a Bachelor’s degree plus 5 years’ experience – for an accountant position as unduly restrictive or excessive.
 
When the requirement is unduly restrictive from the DOL standard, the sponsor must establish ‘business necessity’ that justifies at least a Bachelor’s degree plus 5 years’ experience.  This can be difficult, and the sponsor must be prepared to submit extensive support documents.
 
As such, the answer to a very simple question, “is my case an EB2 case?” cannot be answered without reviewing the employer’s own minimal requirements, employer’s business needs, and DOL’s normal range of requirements for that occupation.
 
Because EB2 or EB3 cases must go through two independent administrative bodies – DOL and USCIS – with many (some of them conflicting with each other) rules, the determination of EB2 or EB3 categorization can be quite technical.  
 
Through this blog, I hope the reader will gain a few guiding principles, learn what issues to address with his/her attorney, and  be on the path for a successful resolution of a challenging process.