[Federal Register Volume 65, Number 128 (Monday, July 3, 2000)]
[Notices]
[Pages 41093-41097]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 00-16885]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 2077-00]


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

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Notice.

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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 (202) 514-2895.

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

[[Page 41094]]

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

[[Page 41095]]

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\
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    \1\ 8 CFR 204.5(k)(2).
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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\
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    \2\ Id.
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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.

[[Page 41096]]

    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

[[Page 41097]]

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.

[FR Doc. 00-16885 Filed 6-29-00; 1:57 pm]
BILLING CODE 4410-10-U