00-16885. Opportunity to File Untimely Motions to Reconsider Decisions Denying EB-2 Immigrant Visa Petitions

AGENCY:

Immigration and Naturalization Service, Justice.

ACTION:

Notice.

SUMMARY:

This notice informs concerned parties (prospective employers who have filed certain EB-2 immigrant visa petitions) of the opportunity to file untimely motions to reconsider Service decisions denying EB-2 immigrant visa petitions. The Service is publishing this notice in accordance with an order issued May 4, 2000, by the United States District Court for the Northern District of California (Chesney, J.), in the case entitled Chintakuntla v. INS, No. C99-5211 MMC (N.D.Cal.). This notice is necessary to ensure that all persons who are able to file motions to reconsider in accordance with the Court's order have notice of their right to do so.

DATES:

This notice is effective July 3, 2000.

FOR FURTHER INFORMATION CONTACT:

Janice Podolny, Associate General Counsel, Chief of the Examinations Division, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street, NW., Room 6100, Washington, DC 20536, telephone number [phone].

SUPPLEMENTARY INFORMATION:

Why Is the Service Publishing This Notice?

On March 20, 2000, the Service published a policy memorandum (the March 20, 2000, Service Memorandum) clarifying the requirements that govern the adjudication of immigrant visa petitions filed under section 204 of the Immigration and Nationality Act (Act) to classify aliens as preference immigrants as aliens who are members of the professions holding advanced degrees or the equivalent (EB-2 immigrants). The March 20, 2000, Service Memorandum provided guidance for Service officers who, in adjudicating EB-2 immigrant visa petitions, must determine whether the job offered to the alien beneficiary actually requires a member of the professions holding an advanced degree or the equivalent. The March 20, 2000, Service Memorandum also addresses the issue of what sort of experience the job must require of a person with only a bachelor's degree, in order for the position to qualify as a position requiring an advanced degree or the equivalent. This March 20, 2000, Service Memorandum is particularly relevant in cases in which the labor certification (ETA-750) does not clearly indicate whether a person with a bachelor's degree must have 5 years post-baccalaureate progressive experience in the profession in order to meet the minimum qualifications for the job.

If a person who has standing wants the Service to reconsider a Service decision in a case, the person may file a motion to reconsider the decision. Under 8 CFR 103.5(a)(1)(i), the person must file the motion no later than 30 days after the Service made the decision. On May 4, 2000, in a case entitled Chintakuntla v. INS, No. C99-5211 MMC (N.D.Cal.), the United States District Court for the Northern District of California ordered the Service to permit some EB-2 immigrant visa petitioners to file untimely motions to reconsider the decisions in their cases in light of the March 20, 2000, Service Memorandum. This part of the Court's order applies to cases in which the Service decision had already become final before the Service issued the March 20, 2000, Service Memorandum. The purpose of this Notice is to ensure that all persons who are able to file motions to reconsider in accordance with the Court's order have notice of their right to do so.

To Whom Do the Personal Pronouns “I,” “Me,” “My,” “You” and “Your” Refer?

In this Notice, the personal pronouns “I,” “me,” “my,” “you” and “your” refer to any person, firm, or other prospective employer who filed an EB-2 immigrant visa petition with the Service.

Does This Notice Apply To My Case?

This Notice applies to your case if you filed an EB-2 immigrant visa petition on behalf of an alien in the second sub-class that the District Court certified in Chintakuntla. The second sub-class includes any alien:

Who is the beneficiary of an I-140 Employment Based Second Preference (EB-2) immigrant visa petition seeking to classify the alien beneficiary as a member of the professions holding an advanced degree, or the equivalent, whose ETA-750 indicated that a bachelor's degree (plus at least five years experience) was required for the position, whose I-140 petition was or may be denied by the Service on the basis that the position did not require an advanced degree; and

In whose case the Service made an administratively final decision on or after July 1, 1997 denying the EB-2 visa petition (whether because the AAO affirmed the initial denial or because the petitioner did not appeal the initial denial to the AAO); and

In whose case there is not already pending a civil action seeking judicial review of the final Service decision in a different case.

If you filed an EB-2 immigrant visa petition on behalf of an alien described in this sub-class, then this Notice applies to your case.

What Does the Court's Order Permit Me To Do?

If this Notice applies to your case, you may obtain a new Service decision on your visa petition. If you want to do so, you must file a motion to reconsider with the Service office that made the last decision on your visa petition. Your motion to reconsider must meet all of the requirements in 8 CFR 103.5(a)(1), including the payment of the filing fee, except that you do not need to file the motion to reconsider within 30 days of the Service decision in your case.

To avoid delays, please make sure that your motion to reconsider says that you are seeking reconsideration of your case in light of the March 20, 2000, Service Memorandum, as permitted by the May 4, 2000, order in Chintakuntla v. INS. It would also be prudent to clearly mark the envelope that you use to submit the motion with the notation: “EB-2 CLASS MEMBER, DO NOT OPEN IN MAIL ROOM. DELIVER IMMEDIATELY TO DIRECTOR'S OFFICE.”

When Must I File a Motion To Reconsider Under the District Court's Order and This Notice?

You must file your motion to reconsider no later than November 1, 2000. The Service will not consider you to have filed a motion to reconsider on time unless the Service actually receives your motion by that date. If you file by mail or by delivery service, you should take care to send your motion in a way that guarantees delivery by November 1, 2000. The Service will accept for filing any motion received after November 1, 2000, but will deny the motion as untimely. The Service will not refund the filing fee.

May I Include Additional Evidence With My Motion?

The March 20, 2000, Service Memorandum provides that the Service may ask a visa petitioner for a statement that supplements the ETA-750. This statement must be an affidavit (or other statement signed under penalty of perjury), signed by a person within your firm who has relevant knowledge concerning the minimum acceptable qualifications for the job. It will speed up the processing of your case if you include a supplemental statement with your motion. If you do, then you should refer to your motion as a “motion to reopen and reconsider.” Other than this supplemental statement, you may not include any additional evidence.

What If I Do Not File a Motion To Reconsider by November 1, 2000?

If you do not file a motion to reconsider by November 1, 2000, you will forever lose your right to seek a new Service decision under the District Court's order. You may still, however, seek judicial review of your case under 5 U.S.C. 701, et seq., in any court that has jurisdiction to review your case, if you seek judicial review within the time allowed by 28 U.S.C. 2401.

What If the Service Decided My Case Before July 1, 1997?

If the Service decided your case before July 1, 1997, you do not have a right to file a motion to reconsider under the District Court's order. You may, however, still seek judicial review of your case under 5 U.S.C. 701, et seq., in any court that has jurisdiction to review your case, provided you do so within the time allowed by 28 U.S.C. 2401.

Does the Court's Order Have Any Effect on My Potential Employee's Ability To Apply for Adjustment of Status?

Yes it does; an alien may apply for adjustment of status only if an immigrant visa is immediately available. Ordinarily, this means, under 8 CFR 245.1(g)(1), that an employment-based immigrant alien must have a current priority date and the Service must have approved the visa petition. The Court enjoined the Service from requiring approval of the visa petition before accepting an adjustment application. Any class member who is otherwise eligible to apply for adjustment of status, and who has a current priority date, may, therefore, file an application for adjustment of status even while the visa petition is still pending. The class member must file, no later than November 1, 2000, a complete adjustment application, including the filing and fingerprinting fees and all supporting evidence. The spouse or child of a class member may also do so.

Note that the ability to file an adjustment application is not limited to the second Chintakuntla sub-class (that is, those aliens whose petitioners are entitled to file untimely motions to reconsider). Members of the first sub-class under the injunction may also do so. The Chintakuntla injunction defines the first sub-class to include:

any alien who is the beneficiary of an I-140 Employment Based Second Preference (EB-2) immigrant visa petition seeking to classify the alien beneficiary as a member of the professions holding an advanced degree, or the equivalent, whose ETA-750 indicated that a bachelor's degree (plus at least five years experience) was required for the position, whose I-140 petition was or may be denied by the Service on the basis that the position did not require an advanced degree; and in whose case the I-140 petition was still pending before the Service on March 20, 2000, (whether before a Service Center or before the AAO).

To avoid delays, a class member should make sure that he or she includes with the application for adjustment of status a written indication that he or she is filing the application before approval of the visa petition, as permitted by the May 4, 2000, order in Chintakuntla v. INS. The class member should also clearly mark the envelope used to submit the application with the notation: “EB-2 CLASS MEMBER, DO NOT OPEN IN MAIL ROOM. DELIVER IMMEDIATELY TO THE DIRECTOR'S OFFICE.” If your prospective employee is a member of the second sub-class and files for adjustment of status, the alien should also include a copy of your motion to reconsider and proof that you actually filed the motion.

Note that if there is a final decision denying your visa petition, the Service will also deny the class member's adjustment application and will not refund the filing and fingerprinting fees.

Does the Court's Order Have Any Effect on My Potential Employee's Ability To Apply for Employment Authorization or Advance Parole?

If your potential employee is eligible under the Court's order to file an application for adjustment of status before approval of the related visa petition, then your potential employee may also file an application for employment authorization (INS Form I-765), an application for advance parole (INS Form I-131), or both. If the Service approves either application, the Service will issue the appropriate documents. Note that the Service will adjudicate the INS Form I-765 by the day before your potential employee's current employment authorization expires if your potential employee:

—Clearly marks the envelope used to submit the INS Form I-765 with the notation “EB-2 CLASS MEMBER, DO NOT OPEN IN MAIL ROOM. DELIVER IMMEDIATELY TO DIRECTOR'S OFFICE.”;

—Identifies himself or herself in writing as a member of the first or second sub-class in the Chintakuntla case; and

—Advises the Service in writing of the date on which his or her current employment authorization is scheduled to expire.

Where Can I Get a Copy of the March 20, 2000, Service Memorandum?

The Service is including the text of the March 20, 2000, Service Memorandum as an appendix to this notice.

Dated: June 28, 2000.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

Note:

The following is the text of the March 20, 2000, Service Memorandum, sent to the INS Service Center Directors and Regional Directors, mentioned in the preamble of this notice.

United States Department of Justice Immigration and Naturalization Service

425 I Street NW Washington DC 20536

March 20, 2000

MEMORANDUM FOR All Service Center Directors All Regional Directors

FROM: /s/ Michael D. Cronin Acting Associate Commissioner Office of Programs

/s/ William R Yates, Deputy Executive Associate Commissioner, Office of Field Operations

SUBJECT: Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants

This memorandum addresses issues relating to the Adjudicator's Field Manual, Appendix 22-1. Chapter 22 provides guidance on employment-based immigrant petitions. This memorandum is being released as an appendix to insure complete Service-wide dissemination. The policies outlined within this document will eventually be incorporated within the text of Chapter 22 of the Adjudicator's Field Manual.

Background

In pertinent part, section 203(b)(2) of the Immigration and Nationality Act (the Act) provides immigrant classification to members of the professions holding advanced degrees or their equivalent and whose services are sought by an employer in the United States.

Petitions seeking the classification of alien beneficiaries as EB-2 advanced degree professionals present a number of issues for Service Center adjudicators. This memorandum provides guidance regarding such decisions.

What is an Advanced Degree?

An advanced degree is a U.S. academic or professional degree or a foreign equivalent degree above the baccalaureate level.^[1]

What is the Equivalent of an Advanced Degree?

The equivalent of an advanced degree is either a U.S. baccalaureate or foreign equivalent degree followed by at least five years of progressive experience in the specialty. Consequently, an alien beneficiary who does not actually hold an advanced degree may still qualify as an EB-2 professional if he or she has the equivalent of an advanced degree.

There are several ways in which an alien seeking EB-2 classification may satisfy the advanced-degree requirement. The simplest is by possessing a U.S. academic or professional degree above the level of baccalaureate. In the alternative, the foreign equivalent of such a degree is equally acceptable.

An alien with a U.S. or foreign equivalent baccalaureate degree who does not possess an advanced degree may still meet this requirement if the baccalaureate-level degree is followed by at least five years of “progressive experience” in the specialty.^[2]

What Elements Must Be Established Before an EB-2 Petition for an Advanced Degree Professional Can Be Approved?

Two critical elements must be established before an advanced degree EB-2 petition can be approved. First, the position itself must require a member of the professions holding an advanced degree. Second, the alien must possess an advanced degree as shown by a master's degree or its equivalent. The threshold issue regarding the position itself appears to be the most troublesome in adjudicating EB-2 petitions for advanced degree professionals.

The key to making this determination is found on Form ETA-750 Part A. This section of the application for alien labor certification, “Offer of Employment,” describes the terms and conditions of the job offered. An adjudicator must review the job requirements contained in blocks 14 and 15 of the ETA-750 and determine whether the position requires an advanced degree professional.

Deciding whether the position requires an advanced degree professional is independent of whether the alien beneficiary is himself an advanced degree professional. If the job itself does not require an advanced degree professional, the petition must be denied, even if the alien beneficiary actually is an advanced degree professional. Likewise, the petition must be denied if the alien beneficiary is not an advanced degree professional, even if the job itself requires an advanced degree professional.

Whether the alien beneficiary actually possesses the advanced degree should be demonstrated by evidence in the form of a transcript from the institution that granted the advanced degree. An adjudicator must similarly consider the baccalaureate transcript and the alien's post-baccalaureate experience for the alien beneficiary claiming the equivalent to an advanced degree.

Does the Job To Be Filled by the Alien Beneficiary Require an Advanced Degree?

A petitioner seeking classification for an EB-2 advanced degree professional must clearly demonstrate that the position requires a member of the professions holding an advanced degree. In other words, blocks 14 and 15 of the ETA-750 must establish that the position requires an employee with either a master's degree or a U.S. baccalaureate or foreign equivalent degree followed by at least five years of progressive experience in the specialty.

It should be emphasized that the mere absence of the word “progressive” from blocks 14 and 15 on the ETA-750 is not grounds for denial of the petition if the required experience is in fact progressive in nature. Adjudicators should examine the nature of the experience required for the position as described in block 13 of the ETA-750 in order to determine whether such experience is progressive.

What Exactly is Progressive Experience?

“Progressive experience” is not defined by statute or regulation. Its plain meaning within the context of EB-2 adjudications is relatively simple: employment experience that reveals progress, moves forward, and advances toward increasingly complex or responsible duties. In short, progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.

Recognizing progressive experience in blocks 14 and 15 of the ETA-750, however, is not so simple. Much of the uncertainty concerning such determinations involves petitions for highly technical positions, which invariably describe required experience in highly technical terms. Such descriptions may be difficult to understand for anyone outside that specific industry.

Adjudicators who encounter these types of descriptions should request that petitioners provide, to the extent possible, plain-English explanations of the experience required. Such descriptions may take the form of a supplemental statement filed with the Service Centers indicating why five years of post-baccalaureate and progressive experience would be necessary to perform successfully the duties set forth in highly technical job descriptions. The supplemental statement should be an affidavit (or other statement under penalty of perjury) from some person within the petitioning firm who has relevant knowledge concerning the minimum acceptable qualifications for the position involved in the Form I-140. It is incumbent upon the petitioner to describe the position offered in such a way so that an adjudicator can reasonably determine whether the job actually requires an advanced degree or, in the alternative, five years of post-baccalaureate experience that is progressive in nature.

It is reasonable to infer that highly technical positions are progressive in nature due to the constant state of change in their respective industries. This is not to say, however, that five years of post-baccalaureate experience in a highly technical position automatically translates to an advanced degree in every case. As with any adjudication, a petition seeking classification for an EB-2 advanced degree professional should be decided on a case-by-case basis.

How Can These Requirements Be Demonstrated?

The terms, “MA,” “ MS,” “Master's Degree or Equivalent” and “Bachelor's degree with five years of progressive experience,” all equate to the educational requirements of a member of the professions holding an advanced degree. The threshold for granting EB-2 classification will be satisfied when any of these terms appear in block 14.

It is also important to read the ETA-750 as a whole. In particular, if the education requirement in block 14 includes an asterisk (*) or other footnote, the information included in the note must be considered in determining whether the educational requirement, as a whole, demonstrates that an advanced degree or the equivalent is the minimum acceptable qualification for the position.

As long as the minimum requirement for the job offered is master's degree or the equivalent, the position should be found to require a member of the professions holding an advanced degree. This is true even if several variations of this requirement are stated.

Examples

The following are examples of actual statements contained at blocks 14 and 15 of the ETA-750. They are by no means exhaustive. Their inclusion here is intended to simply illustrate concepts discussed in this memorandum.

Position 1: Staff Software Engineer

ETA 750 Item 14: Education—B.S. (or foreign equiv.) comp. science, elec. eng., or related field.

Experience—5 years job offered or 5 years related occupation software engineer.

ETA 750 Item 15: Exp. must include: design & development of major software subsystems; RDBMS internals; operating system internals; complex systems software design; symmetric multiprocessing and large scale network systems.

It is unclear whether this job requires 5 years of experience following receipt of the baccalaureate. For this reason, the adjudicator should request that the petitioner provide a supplemental statement clarifying whether the position requires five years of post-baccalaureate experience that is truly progressive in nature. If the supplemental statement establishes that the minimum qualifications for the position require a member of the professions holding an advanced degree and, assuming the beneficiary possesses these qualifications, the petition should be approved.

Position 2: Senior Software Engineer

ETA 750 Item 14: Education—MSCS or equiv. * * *. Major Field of Study—Computer Science or related field.

Experience—3 years in job offered or 3 years in related occupation of Software Engineer.

ETA 750 Item 15: C/C++ Programming; RDBMS Design * * * Will consider candidates with BSCS and 5 years experience as Software Engineer.

Similarly, it is unclear in this position as well whether this job requires 5 years of post-baccalaureate experience as a Software Engineer. Because of the additional requirement of a Master of Science in Computer Science degree or its equivalent, however, the underlying petition may be approvable. For this reason, the adjudicator should request that the petitioner provide a supplemental statement clarifying whether the position requires five years of post-baccalaureate experience that is truly progressive in nature. If the supplemental statement establishes that the minimum qualifications for the position require a member of the professions holding an advanced degree and, assuming the beneficiary possesses these qualifications, the petition should be approved.

Position 3: Software Engineer

ETA 750 Item 14: Education—Master's or equivalent* Major Field of Study**

Experience—3 years in job offered or in the related occupation of software engineer, systems engineer, or programmer/analyst.

ETA 750 Item 15: * Bachelor's degree in Computer Science, Electrical Engineering or academic equivalent, and 5 years of progressive experience will substitute for Master's degree in Computer Science and 3 years of such experience.

** Computer Science, Electrical Engineering or academic equivalent.

This position clearly requires a master's degree or 5 years of progressive experience. Consequently, the position requires a member of the professions holding an advanced degree. Again, assuming the beneficiary possesses these qualifications, the underlying petition should be approved.

Relevance of the Alien Beneficiary's Actual Qualifications

The second and third examples raise an additional question to be decided before approving some petitions—those in which the alien beneficiary does not actually have a Master's degree. The ETA-750 in each of those cases requires that a candidate with a Master's degree must have three years' experience, but that a baccalaureate with five years' experience is acceptable. The question is whether the petitioner can include the alien's 5 years' post-baccalaureate progressive experience both to make the alien's baccalaureate the equivalent of a Master's degree and to meet the three years' experience that someone who actually does have a Master's degree must have. The answer will depend on what the ETA-750 actually says. Note that the sample ETA-750s do not require that the three years' experience must follow the receipt of a Master's degree—only that the applicant must have both the degree and the experience. The ETA-750, therefore, does not preclude someone who just received a Master's degree from qualifying for the position on the basis of pre-Master's experience. By the same reasoning, someone with a baccalaureate degree, and experience that makes it equivalent to a Master's, can qualify based on the pre-Master's equivalency experience. If the beneficiary has a baccalaureate with five years' progressive post baccalaureate experience, the petition should be approved unless the ETA-750 clearly and explicitly requires that the level of experience that a Master's applicant must have must be post-magisterial experience.

If the ETA-750 does require that the experience must have been post-magisterial experience, and the alien beneficiary just has the baccalaureate plus five years' progressive post-baccalaureate, then the alien beneficiary cannot meet the post-magisterial experience requirement. In that case, the petition should be denied, not because the alien beneficiary is not an advance degree professional, but because the alien does not meet the actual qualifications as stated on the ETA-750. See K.R.K. Irvine, Inc., v. Landon, 699 F.2d 1006 (9th Cir. 1983); Matter of Wing's Tea House, 16 I & N Dec. 158 (INS 1977).

Where Do Adjudicators Find Help Concerning EB-2 Petitions for Advanced Degree Professionals?

EB-2 petitions for advanced degree professionals involving unusually complex or novel issues of law or fact can be certified to the Administrative Appeals Office pursuant to 8 CFR 103.4. Questions concerning this guidance can be addressed to Senior Adjudications Officer [officer's name deleted] through channels via cc:Mail.

Footnotes

1.  8 CFR 204.5(k)(2).

2.  Id.