INS on EB2 and EB3 Classifications for Employment-Based Preference Petitions
Posted Oct 12, 1998

AILA sought clarification and INS conceded that certain INS Service Centers which were denying EB2 classification should be allowing EB2 and not EB3 as they are undertaking. This issue is particularly important for nationals of India and China who are experiencing substantial backlogs in the EB3 classification.

The issue is whether in order to qualify for EB2 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 EB2 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 EB3 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 EB2 classification in either instance. Headquarters will contact the appropriate Service Centers to correct this error.