AAO Finds That Indian Provisional Certificate Satisfies Degree Requirement

The Administrative Appeals Office (AAO) recently decided in a non-precedent decision that a provisional certificate from an Indian university was the equivalent of a degree. This favorable decision hopefully will lead the U.S. Citizenship and Immigration Services (USCIS) to institute a formal policy of recognizing the use of such provisional certificates to meet the education requirements of employment-based green card cases.

Fact Pattern of Case

The case, Matter of O-A-, Inc., ID# 84300 (AAO Mar 15, 2017), involved an employment-based, second preference (EB2) category position that required a minimum of a bachelor’s degree in engineering followed by five years of progressive (i.e. post-baccalaureate) experience. The beneficiary of the immigrant petition (form I-140) in this case completed the educational requirements from an Indian university for a degree in electronic engineering, and was issued a provisional certificate. However, the official diploma was not issued by the university until several months later.

Under U.S. immigration law, for a case involving a PERM labor certification (LC), the beneficiary must meet all of the requirements at the time the LC is filed. By the time the LC was filed in this case, the beneficiary had completed just over five years of experience since being awarded the provisional certificate. But, he did not meet the five years of post-baccalaureate work experience if measured from the time when the diploma was formally issued. The USCIS denied the petition on this point, and the petitioning employer appealed, arguing that the five-year employment requirement should instead be counted from the date the provisional certificate was issued.

Background on Provisional Certificates Issued by Indian Universities

In India, to obtain a provisional certificate, the student must have completed all of the requirements for the degree in question. It may then take the university months, or even years to issue the official diploma. In the past, the USCIS has been inconsistent as to whether to regard these provisional certificates as the equivalent of a degree.

AAO Rules Provisional Certificate Is Equivalent to Degree for EB2 Purposes

In its decision, the AAO noted that the relevant immigration statute and regulations detail education requirements in terms of “degrees,” rather than “diplomas.” Thus, the AAO determined that the focus should be whether, “at the time a provisional certificate is issued, the individual has completed all substantive requirements to earn the degree and the university has approved the degree.” The AAO sustained the appeal, finding that, by the time the provisional degree had been issued, the beneficiary had “completed all the substantive requirements … The final diploma here was simply a delayed formality.”

Conclusion

It should be noted that this is a non-precedent decision. This means that it is only binding with respect to this particular EB2 filing. That being said, the USCIS will often use such decisions as a guide to develop internal policies and guidelines. Hopefully, with this recent decision, the USCIS will issue formal guidance and instruct their examiners to recognize such provisional certificates as the equivalent of degrees, rather than relying solely on the date diplomas are officially issued.

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