Indian Medical Degrees NOT EB2 Advanced Degrees, Per USCIS12 Dec 2008
Many law firms representing physicians in the immigration process have begun noticing a disturbing new trend in the treatment of I-140 employer petitions filed in the employment-based, second preference (EB2) category on behalf of international medical graduates (IMGs). While it long has been a given that physicians fall squarely within EB2, the USCIS now increasingly is issuing Requests for Evidence (RFEs), Notices of Intent to Deny (NOIDs), and Denials of I-140 petitions filed on behalf of IMGs, arguing that certain foreign medical degrees do not qualify for the EB2 category. The Murthy Law Firm is responding to the USCIS on this matter through various legal and liaison channels. We expect that, working together, we will be able to demonstrate the statutory and legal basis to respond effectively to help our IMG clients.
The USCIS Position : No Advanced Degree or Equivalent
The Immigration and Nationality Act (INA) defines EB2 to include advanced degree professionals. The USCIS regulation interpreting this provision contains a definition of advanced degree. It is that definition, and the application of that definition, that is creating the current difficulties. The definition of an advanced degree in the regulations is any U.S. academic or professional degree or its foreign equivalent above the level of a baccalaureate degree. The key problem is the need for the foreign degree to be above a baccalaureate. The educational system in other countries does not always fit the U.S. model of an entry level, baccalaureate degree followed by some more advanced degree. This form-over-substance approach has created the current problem, in which foreign medical degrees are not being regarded as “advanced” since there is not a college-level degree prerequisite to the medical degree.
Indian Medical Degrees are Termed Bachelors’ Degrees
Murthy Law Firm experiences with this problem, and the cases we have seen, have involved individuals with Indian or Pakistani medical degrees. It also applies, however, to physicians educated in the 43 other countries that follow a similar model for medical education. This model does not match the U.S. system in the sense of a separate, underlying degree requirement to enter medical school. The USCIS is focusing on the fact that the medical degree at issue is designated Bachelor of Medicine and Bachelor of Surgery (MBBS). It is the final medical degree granted to those pursuing medical education in many countries, including India. This degree renders them eligible to practice medicine in their home counties, and to enter graduate medical education (residencies and fellowships) in the U.S.
The USCIS has, without explanation or elaboration, been denying EB2, I-140 petitions filed based upon labor certifications that require a Medical Doctor (MD) degree or its foreign equivalent. The denials simply state that a medical degree is not within the definition of advanced degree, as required for EB2. They have not been accepting proof that the MBBS is the foreign equivalent to the U.S. MD degree.
The USCIS Position Is Questionable
At the Murthy Law Firm, it is our position that the USCIS interpretation is erroneous. It is clearly a departure from long-standing, widely-recognized standards amongst bodies that govern medical education and practice in the United States. In fact, the USCIS Administrative Appeals Office (AAO) has consistently stated that an MBBS degree is equal to an MD degree. It is a single-source degree that is, by its very nature and requirements, advanced and inherently beyond a standard baccalaureate degree. The doctors at issue have completed at least a medical residency program in the U.S., if not fellowship training. They are fully licensed and authorized to practice medicine in the United States. They are clearly the highly-educated professionals envisioned in the EB2 category.
USCIS Elevating Form over Substance in Ignoring Degree
The issue is not that USCIS is claiming the MBBS degree to be somehow substandard. It is simply demanding the foreign education fit a U.S. model. The USCIS is not debating the fact that the degrees are equivalent. They are refusing to categorize them as meeting EB2 standards because the physician does not first undergo a baccalaureate program, and then obtain a medical degree.
The U.S. Department of Education (DED) has determined that MBBS degrees issued by institutions in India, accredited by the Medical Council of India, are analogous to MD degrees issued by accredited institutions in the United States. Moreover, the Educational Commission for Foreign Medical Graduates (ECFMG), consistently certifies that the MBBS degree renders an individual eligible to apply for graduate medical residencies and fellowships in the United States. These residencies and fellowships require an MD or its equivalent for entry. The ECFMG is the sole sponsor authorized by the U.S. Department of State (DOS) for sponsorship of the J-1 exchange visitors for graduate medical training.
The reason that the MBBS is accepted by the ECFMG, as well as the DED is, in part, because the medical school curriculum and the goals and objectives of medical education are nearly identical between the United States and India. This recognition, by experts like the DED, ECFMG and the DOS in the area of medical education, should be taken into account by the USCIS without their having to impose new or different criteria in this equation.
Conclusion and Efforts
The Murthy Law Firm is actively addressing this matter of concern to many IMGs. We have taken the issue to the AAO, where it is still pending, and are addressing the topic in RFE responses, for which we are being approached by various IMGs. Our firm will continue to take this matter through appropriate channels, to reverse this new, radical reversal of earlier policy of the USCIS, and to put IMGs squarely back where they belong, as EB2 advanced-degree professionals. The reason for the USCIS’s alteration of long-held adjudication standards is not clear. Certainly, parsing regulations in an attempt to deny cases, while we are experiencing a serious shortage of health care workers of all types, is counterproductive to solving the nation’s healthcare crisis. Instead it erects roadblocks and disincentives in the paths of physicians seeking to practice in the United States.