Back to School: Considerations for U.S. Education06 Aug 2010
Many inquiries come to us at the Murthy Law Firm from foreign nationals who are considering additional education in the United States. The motivation is frequently a combination of the desire to add to their professional skills to gain qualifications for better job prospects, as well as potential immigration advantages. Additional education sometimes can open other immigration options. Some of the primary immigration considerations of a U.S. education are presented here for our MurthyDotCom and MurthyBulletin readers to contemplate.
Practical Considerations for U.S. Education
Many foreign nationals have practical considerations that limit their educational options. Most commonly, one must continue to work, or must remain in a certain location with a spouse. Online courses are often attractive, as a way to balance work and family responsibilities. Thus, they wonder how a degree from a particular school will be viewed from an immigration perspective. A key to this question is accreditation of the school.
Government Accreditation of U.S. Schools / Universities
Under current standards and policies, a U.S. degree must be accredited in order receive recognition from the U.S. Citizenship and Immigration Services (USCIS). This can be confusing, as many schools claim to be accredited. There are numerous organizations that issue accreditations to colleges and universities. Not all of these organizations are equal, however.
The USCIS recognizes those educational institutions that are accredited by organizations recognized as reliable authorities by the U.S. Department of Education. A database of educational institutions and accrediting agencies is maintained by the U.S. Department of Education. While all of the schools listed are accredited, it should be noted that they are not all colleges or universities that confer degrees at the bachelors’ and masters’ levels. Trade and/or technical schools are included. Thus, it is necessary to determine whether a particular school has an appropriate degree program, and then if it has the appropriate accreditation. [More information on authorization to confer degrees is available in our article, Indian Educational Accreditation Issues (09.Jan.2009).]
Strategies: Possibility of Upgrading from EB3 to EB2
One of the reasons individuals consider additional education is the possibility of qualifying under the employment-based, second preference (EB2) category. The strategy of changing from an EB3 case to an EB2 case is outlined in our article, Moving to the Faster Lane: EB3 to EB2 (19.Feb.2010). Of course, EB2 qualification is based on job requirements. It is not enough to have education that would meet the EB2 level. One also must have a job offer that has EB2 level requirements. Additionally, as explained below, in the labor certification context, there are issues with regard to how education gained while working with one’s sponsoring employer will be treated.
Ability to Attend School in H1B / H-4 or Other Status
One does not have to be an F-1 student to attend school in the United States. H1B workers can attend school, provided they continue in their H1B employment. The guidance on this is quite old and simply states that the H1B employment must be the primary reason for being in the United States.
Thus, the general practice is for an individual to work full time in H1B status, and attend school on a part-time basis. H-4 spouses and children can attend school on a full- or part-time basis. The same rules hold for most other nonimmigrant statuses, with the exception of F-2s.
Individuals with pending adjustment-of-status (I-485) cases can also attend school. The primary applicants in employment-based I-485 cases also need to have a valid qualifying job offer, in addition to any educational pursuits.
Problem of Education While Working with GC Employer
In the PERM labor certification (PERM / LC) context, there is an issue with respect to education gained while working for the sponsoring employer. It can be risky to use education gained while working with one’s employer as a requirement for an employer-sponsored position in a PERM / LC case. The labor certification case must be based upon the employer’s actual minimum education and/or experience requirements for the position. If an individual was hired prior to obtaining a certain degree, then that degree normally would not be regarded as a minimum requirement for the job.
PERM Restricts Experience with GC-Sponsoring Employer
The PERM regulations specifically address qualification based upon experience gained with the sponsoring employer. In that event, the experience can only serve as a basis for qualification for the job if the employer is offering the individual a significantly different job. The employer must establish that the job in which the experience was gained was not “substantially comparable” to the job for which the PERM / LC is being sought. The standard requires establishing that different job duties must be performed more than 50 percent of the time for the new position.
There is no such specific rule for education. However, using the more-than-50-percent rule generally is considered the safest approach for cases in which the education was gained while working for the sponsoring employer. Of course, this problem is eliminated if one changes to a job with a new employer for GC sponsorship.
Employer-Paid Education is Problematic for GC Sponsorship
Typically, it will not be possible to utilize education paid for by the sponsoring employer as a requirement for the offered position in a PERM / LC. The PERM application asks whether the employer paid for any of the beneficiary’s education or training that is necessary to satisfy the employer’s job requirements for the position. If the answer to this question is yes, the employer must offer similar training to domestic applicants for that particular position.
Other Immigration Considerations for EB2
When considering the level of degree that would be best, when immigration benefits are under consideration, it is necessary to review the EB2 requirements. The EB2, for those with bachelors’ degrees, requires that the five additional years of experience be gained after completion of the degree. Thus, if one has a foreign bachelor’s degree that is considered not equivalent to a U.S. bachelor’s degree, s/he most likely will want to try to obtain a U.S. master’s degree, rather than a U.S. bachelor’s degree.
If one only has the U.S. bachelor’s degree, s/he would have to wait five more years to get additional post-completion progressive work experience to potentially qualify for the EB2 category. One would be better off with a U.S. master’s degree, and such an individual will find that many U.S. schools will accept the foreign bachelor’s degree as sufficient for enrollment into a master’s level program, even if the USCIS does not equate the foreign education to a U.S. bachelor’s degree.
Obtaining a good U.S. education can make one more competitive in an economic period when any edge is helpful. A potential immigration advantage may also be beneficial. It is always best, however, to discuss such strategies with a qualified immigration attorney, and to make sure that one’s status is maintained while attending school, sharpening skills to improve job prospects.