Not a Lexis+ subscriber? Try it out for free.

Immigration Law

With Adopted Decision Matter of O-A-, USCIS Accepts Provisional Certificates As Evidence of Degree Completion - Michelle S. Velasco

Michelle S. Velasco, July 5, 2017 - "In a much welcomed move, the U.S. Citizenship and Immigration Services (“USCIS”) established the Administrative Appeals Office (“AAO”) decision Matter of O-A-, March 15, 2017, Appeal of Nebraska Service Center Decision, Form I-140 Petition as an Adopted Decision via Policy Memorandum PM-602-0144 dated April 17, 2017.  The case centered on whether the date of issuance of a provisional certificate, rather than the formal diploma certificate, from countries like India, Pakistan, and Bangladesh can be deemed the date when a degree was awarded.  In Matter of O-A-, an employment-based second preference (“EB-2”) petition was filed on behalf of a foreign worker who obtained her degree in India.  The beneficiary’s diploma certificate was issued many months later than her provisional degree when she had completed the degree requirements, and she could only meet the EB-2 proffered position’s requirements of a bachelor’s degree (or equivalent) plus five years of progressive professional experience if USCIS recognized the date of her provisional certificate as the date she obtained her degree and not the date she was issued the final diploma by her school.  Otherwise, she would be short of the five years of post-baccalaureate experience required.  The AAO held that, if certain requirements are met, adjudicating USCIS officers can consider the date of the provisional certificate for purposes of calculating post-graduate experience.  About one month after the decision was issued, USCIS established it an Adopted Decision.

As laid out in the Immigration and Nationality Act (“INA”) § 203(b)(2) an EB-2 petition may be filed by an employer for a professional with an advanced degree, and 8 CFR §204.5(k)(2) defines an advanced degree as “[A]ny United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.”  The beneficiary of the EB-2 petition must be eligible as of the priority date ‑ the date when the labor certification (also known as the PERM application) is filed with the Department of Labor (DOL).

In Matter of O-A-, the beneficiary was issued a provisional certificate on May 17, 2006 and then a formal diploma on March 30, 2007.  The labor certification was filed October 23, 2014, only four years and eight months after her diploma issuance date, but over five years after her provisional certificate issue date.  USCIS concluded that she acquired her degree when she received her formal diploma, not when the provisional certificate was issued, and thus denied the petition because the beneficiary fell short of the five-year post-baccalaureate professional experience requirement.

Such an absurd decision is unfortunately not surprising from the USCIS. Anecdotally we are aware of at least several other similar denials of employment-based petitions where the beneficiary’s degree date is held strictly to the diploma issuance, and not the provisional certificate, rendering the beneficiary ineligible for the petition because he or she did not meet the required five-years of post-graduate experience.  In one case, which we shall refer to here as Matter of T-, by using the diploma date, the USCIS found that the beneficiary had approximately 1,760 of the required 1,825 days (5 years) of experience needed (short by just 65 days!) and denied the I-140.  In another case which we refer to here as Matter of P-, the USCIS issued a Request for Evidence (“RFE”) for the I-140 asking for the diplomas because it would not accept the provisional certificates for a Bachelor’s degree completed in 2003 and Master’s in 2005 that otherwise clearly showed the beneficiary had obtained the equivalent of a U.S. Bachelor’s in 2005.  The beneficiary’s university issued the requested diplomas, but dated them in January and February 2017.  Any reasonable person would have concluded that the dates printed on the diplomas are merely the printing and issuance dates, and not the dates when the degrees were awarded. Alas, sometimes USCIS’s definition of reasonableness differs from that of the reasonable person.  The USCIS denied the I-140 because it determined the beneficiary only received his degrees in 2017 and therefore could not have gained the required five years of post-graduate experience by the priority date of December 14, 2015.  The denial includes the following stunning language: “While some educational institutions may view the effective date of a degree differently for their own purposes of program completion, graduation, or admission to a further degree program, we are not bound by any such policies or modus operandi in our adjudications of the instant petition.”  In other words, USCIS itself can determine when a degree has been awarded, no matter what the degree-granting school itself says.  And in the case of Matter of P-, USCIS ignored all other evidence that consistently pointed to 2003 and 2005 as the years when the beneficiary was awarded his Bachelor’s and Master’s degrees and concluded that the dates on the diplomas are the dates when the beneficiary obtained his degrees.  This was their conclusion even though the beneficiary had already been working professionally abroad and in the U.S. (in H-1B status, which of course requires the beneficiary to have obtained at least a Bachelor’s degree) for over a decade.

The absurdity of these I-140 denials prompted the American Immigration Council (“AIC”) to file an amicus brief in the Matter of T- appeal to the AAO.  The AIC argued several grounds.  First, it reasoned that the provisional degree certificate satisfies the plain meaning of “degree” as defined by any dictionary and as defined by the American Association of Collegiate Registrars and Admissions Officers (AACRAO).  Second, the AIC argued that, alternatively, a provisional degree certificate is one form of official academic record which ought to be sufficient to establish that the foreign national has achieved the required degree.

The AAO in Matter of O-A- ultimately relied on the plain meaning of the statute as well as persuasive notes in the AACRAO Electronic Database for Global Education (EDGE).  The AAO initially states that the statue and regulations governing the EB-2 classification refers to “degrees” and not diplomas.  Thus, the analysis of when a foreign national has completed his or her degree cannot be limited to the date when a university confers a formal diploma.  In 8 CFR § 204.5(k)(3)(i)(B), the regulations ask for initial evidence of an official academic record showing the beneficiary has a foreign equivalent “degree.”  Likewise, in the Adjudicator’s Field Manual, in Appendix 22-1, Memo from Michael D. Cronin, Acting Associate Commissioner, Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants (March 20, 2000), USCIS officers may look at evidence in the form of a transcript from the institution granting the advanced degree as evidence of whether the beneficiary possesses the advanced degree, demonstrating that it has been USCIS policy to consider evidence other than the formal diploma for whether a beneficiary has obtained the required advanced degree.  The AAO additionally points to the regulations for EB-2 exceptional ability petitions in which an official academic record can consist of “a degree, diploma, certificate or similar award from a college or university.”  8 CFR § 204.5(k)(3)(ii)(A).

Further, the AAO points out that in the AACRAO EDGE database confirms that provisional certificates are issued in India to students who have completed all requirements for the degree in question.  The entry states, in pertinent part:

The Provisional Degree Certificate provides evidence of completion of all requirements of the degree in question, the name of the degree and the date upon which it was approved by the responsible university governing body, and is comparable to an official U.S. academic transcript with a degree statement certifying completion of all requirements for the degree, the name of the degree and the date upon which it was approved by the academic senate at universities in the United States.

Further, AACRAO/EDGE states that in India, students often do not obtain a degree certificate or diploma because provisional degrees are accepted for both employment and further education, and “the only difference between a Provisional Degree Certificate and Degree Certificate is that the graduate has attended a university convocation ceremony.” The AACRAO/EDGE author’s notes on provisional degrees additionally explains why this is the case:

A Provisional Degree Certificate is issued to any student who has completed all degree requirements. In order to receive a final Degree Certificate… students must attend a formal convocation ceremony.  However, many universities do not have annual convocation ceremonies… there is also a lack of necessity for the Degree Certificate (or Diploma) because Provisional Degree Certificates are widely recognized and accepted for both employment and further education… some graduates never obtain their Degree Certificates/Diplomas because (1) they choose not to attend the convocation ceremony, which may not take place until months, or years, after they have completed their degree requirements; (2) they live in a different state from the one where they completed their degree requirements (and obtained their Provisional Degree Certificates); and (3) there is no need to obtain the Degree Certificate due to the wide acceptance of the Provisional Degree Certificate for both employment and academic admission purposes.

*          *          *

It is therefore recommended that the Provisional Degree Certificate be accepted for what it is, and that is evidence of completing all requirements for the degree in question, the name of the degree and the date upon which it was approved by the responsible university governing body. (Emphasis added)

It is therefore satisfying to see the USCIS establish Matter of O-A- as an Adopted Decision so that going forward USCIS will not issue absurd RFEs and denials for I-140 petitions when there is sufficient evidence that the date on a provisional certificate was the date when the foreign national obtained his or her degree.  The reasoning in prior denials demonstrated the close-mindedness of USCIS in its strict adherence to using diplomas as the only form of acceptable evidence of a degree.  That USCIS went so far as to claim that it alone determines when a degree is awarded, no matter what the degree-awarding university says!  From now on, USCIS officers must conduct a case-specific analysis, review other forms of evidence and not just a formal diploma, to determine whether the beneficiary has completed all substantive requirements to earn the degree and that the university or college has approved the degree, such that the provisional certificate date can be used for purposes of calculating post-graduate experience.  Let us hope that with adopted decisions like this USCIS will embrace a more modern and progressive approach to adjudicating petitions.  For beneficiaries who must rely on their provisional certificates to meet the post-graduate experience requirement, we recommend obtaining ample evidence that their degree requirements were completed and that the school had approved the awarding of the degree as of the date of the provisional certificate."