Foreign nationals who have the equivalent of a U.S. bachelor's degree plus five years relevant experience have traditionally been able to qualify for an EB-2 "advanced degree professional" immigrant status. Under this scenario, a foreign national from a country with a large backlog of immigrant visa petitions (such as India or the PRC) can file under an EB-2 status and obtain his/her immigrant visa and green card much earlier than an EB-3 immigrant from the same country. This is because there is usually less of a backlog in immigrant visa petitions for EB-2 immigrants versus EB-3 immigrants. However, the recent interpretations by the Immigration and Naturalization Service ("INS") essentially make this approach unavailable. Therefore, until this issue is resolved, foreign nationals cannot rely on their experience to qualify for an EB-2 immigrant visa.
This is not as bad a news as it sounds. This is because, in many states, it is taking the government two or more years to process a labor certification application. This processing time is even longer if a case is rejected as a reduction in recruitment case and is processed under the traditional labor certification procedure. Therefore, by the time an Indian or PRC national is ready to obtain his/her green card, there may not be a significant delay before (s)he can obtain his/her green card.
Under INS regulations, an individual can qualify for an EB-2 status if the individual has the equivalent of a U.S. bachelor's degree plus five years of progressively more responsible work experience in the specialty. The new trend is for the INS to require the term "progressively more responsible experience in the field" to be included in the labor certification application. The U.S. Department of Labor ("DOL"), however, will not approve a labor certification application that includes this requirement. Moreover, the DOL's position is that bachelor's degree plus five years' experience is not equivalent to a master's degree, but rather a doctorate degree. Therefore, any labor certification application that includes such a job requirement is excessive and invalid.
