AILA sought clarification and INS conceded that certain INS Service Centers which were denying EB-2 classification should be allowing EB-2 and not EB-3 as they are undertaking. This issue is particularly important for nationals of India and China who are experiencing substantial backlogs in the EB-3 classification.

The issue is whether in order to qualify for EB-2 classification for permanent residency status, the Beneficiary is required to have an M.A./M.S. Degree or if a bachelor’s degree with at least five (5) years of progressive experience in the specialty occupation will satisfy the requirement.

The law provides for EB-2 classification in either instance. For some reason, certain INS officers are incorrectly requiring candidates who possess five (5) years of progressive experience with a B.S. Degree to be reclassified as EB-3 professionals. Particularly, this issue which was rampant with the Nebraska Service Center is now spilling over to the
Vermont Service Center. These INS officers have been taking the position that only an advanced degree (M.S. or M.A.)is acceptable, not a bachelor’s plus the five years experience.

INS headquarters agreed with AILA that these INS officers are incorrectly ignoring the language of the statute which allows EB- 2 classification in either instance. Headquarters will contact the appropriate Service Centers to correct this error.