UPDATE ON INDIAN THREE–YEAR DEGREES AND POSTGRADUATE DIPLOMAS

By Cyrus D. Mehta

The greatest bane for green card aspirants with Indian degrees is the uncertainty that they will be recognized as single source degrees. If an Indian degree is recognized as the single source equivalent of a US four-year bachelor’s degree, it can provide the basis for an I-140 immigrant visa petition under the employment-based second preference (EB-2) for permanent residency. If an Indian degree cannot be recognized as a single source four-year degree, the potential green card candidate slides into the employment-based third preference (EB-3). While both the India EB-2 and EB-3 are moving at a snail’s pace, there is still a dramatic difference between the EB-2 and EB-3 for India. One sponsored by an employer in the India EB-2 can hope to get a green card  within 10 years, but one caught in the India EB-3 would need to wait for several decades!

A three-year Indian degree on its own will never make it into EB-2 as it is not considered the equivalent of a four-year US degree. See Matter of Shah, 17 I&N Dec. at 244 (Reg. Comm. 1977). Till recently, even a three-year degree combined with a post-graduate diploma (PGD), even if technically equivalent to a US bachelor’s degree,  was not considered a single source degree. To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign four-year single source bachelor’s degree equivalent to a US degree plus five years of post baccalaureate experience. Ron Wada, who is the undisputed guru of degree equivalency issues, reports that in some instances the USCIS has been recognizing that an Indian three year degree followed by a post graduate diploma may qualify as an exception to the “single-source degree rule.” See Wada, The Nth Degree: Issues and Case Studies In Degree Equivalency – 2015 Update, 20 Bender’s Immigration Bulletin 475, May 15, 2015.

Not all combinations of three-year bachelor’s degrees and post graduate diplomas will qualify under this exception and thus be found to be comparable to a US bachelor’s degree. The Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) has to confirm that the PGD should either be issued by an accredited university recognized by the University Grants Commission or should be an institution approved by the All-India Council for Technical Education (AICTE).

In most of the unpublished decision of the Administrative Appeals Office (AAO) involving non-university PGDs found through a computerized  search, such as for example Matter of X (identifying information redacted), 2013 Immigr. Rptr. LEXIS 2177, 2013 WL 5296297 (INS), the following extract is worth noting:

According to EDGE, a three-year Bachelor of Science degree from India is comparable to “two to three years of university study in the United States.” EDGE further discusses postgraduate diplomas, for which the entrance requirement is completion of a two- or three-year baccalaureate degree. EDGE states that a postgraduate diploma following a two-year bachelor's degree represents attainment of a level of education comparable to one year of university study in the United States. EDGE also states that a postgraduate diploma following a three-year bachelor's degree represents attainment of a level of education comparable to a bachelor's degree in the United States. However, the “Advice to Author Notes” section states:

Postgraduate Diplomas should be issued by an accredited university or institution approved by the All-India Council for Technical Education (AICTE). Some students complete PGDs over two years on a part-time basis. When examining the Postgraduate Diploma, note the entrance requirement and be careful not to confuse the PGD awarded after the Higher Secondary Certificate with the PGD awarded after the three-year bachelor's degree.

The evidence in the record on appeal did not establish that the beneficiary's postgraduate diploma was issued by an accredited university or institution approved by AICTE, or that a two- or three-year bachelor's degree was required for admission into the program of study

This AAO decision demonstrates that not only must the PGD be approved by AICTE, but the entrance requirement for a PGD must also be after the completion of a two or three year bachelor’s degree, and not after the completion of high school.

Not all PGDs will qualify and one must carefully check whether it has been recognized by AICTE. For instance, courses at the ever familiar NIIT or Aptech institutes in India are not approved by AICTE. Nor are most of  the programs offered at the Center for Development of Advance Computing (CDAC), unless the CDAC courses are offered in conjunction with universities  and result in degrees.  It is very important to get the PGD assessed by an experienced credential evaluation service, which should check that the PGD has not only been recognized by AICTE but admits students after they have generally completed a three-year degree.  

The USCIS has always been niggardly in recognizing Indian degrees, especially three-year degrees, so as to qualify under the EB-2. The recent recognition of some non-university PGDs, obtained after a three year degree, provides some respite to many who would otherwise be caught in the endless India EB-3 backlogs. A  recent Times of India article reveals that India Inc. invested $15 billion in the United States and created 91,000 jobs. Despite this enormous boost to the US economy, Congress has done nothing to reduce the EB-2 and EB-3 backlogs for India, and the USCIS has been slow to recognize that Indian degrees, or combinations, equate to comparable US four-year degrees. The recognition of certain PGDs  following a three-year degree program is therefore welcome, but the USCIS must still go a long way in being more generous in welcoming skilled Indian nationals to the United States. 

 (The author thanks Natalie Araujo of the The Trustforte Corporation for sharing some of her insights)

AFTER THE OCTOBER 2012 VISA BULLETIN, A DECADE LONG WAIT UNDER THE FAMILY FOURTH PREFERENCE IS A PIECE OF CAKE

By Cyrus D. Mehta

I write this blog with some sarcasm. The family fourth preference (F-4), which allows US citizens to sponsor their siblings for a green card, is horrendously backlogged. It takes over 10 years for a brother or sister of a US citizen to obtain a green card. If the sibling was born in the Philippines, the wait could well be over 25 years. So, why is it a piece of cake?

After the State Department released its Visa Bulletin for October 2012,   the F-4 at least for the worldwide category appears to be more advantageous in terms of waiting time than say the employment-based third preference (EB-3) for India, which is applicable to jobs that require bachelor’s degrees or at least two years of training or experience. The EB-3 for India is so backlogged that it could take a US employer 70 years before the Indian worker it sponsors gets a green card.

What was also disappointing with the October 2012 Visa Bulletin was that the employment-based second preference (EB-2), after being unavailable all summer, emerged in October with a cutoff date of September 1, 2004. This means that employers who filed labor certifications on behalf of foreign national workers with advanced degrees on or before September 1, 2004, can apply for their green cards today.  This does not bode too well because in April 2012 the cutoff date for the India EB-2 was May 1, 2010.  It should have emerged in October at the same cut off level, not back at September 1, 2004. Perhaps, the reason for this giant leap back in time is because many in the EB-3 with priority dates going back to 2004 and earlier are upgrading into the EB-2.  Noted immigration attorney Carl Shusterman has quite correctly called the October 2012 Visa Bulletin a disaster.

But jokes aside, the F-4 is actually a good hedge against the broken legal immigration system in the United States. If you have a brother or sister with kids who are 6 or 7 today, file the I-130 petition and then forget about it. Treat it like a long term stock in a new startup that will increase in value in the years to come.  By the time the green card comes through for your sibling, his or her kids would be 17 and 18, old enough to start college in the US as green card holders rather than  on an F-1 student visa. Note that spouses and children can derivatively get their green cards with the principal beneficiary.  If these kids were born in India, think of the benefit this would give them after they graduate from college and get a coveted job in the US – and let’s hope by then that the US economy would have turned around through some breakthrough technology that would result in an abundance of jobs!  Assuming that the EB-3 was as backlogged in 2023 as it is today, because Congress continued to remain in permanent gridlock, those kids would have to wait about 70 years to get their green card under the EB-3. Instead, the F-4 that you filed with a great deal of foresight today would benefit your nephews and nieces by the time they come of age and are ready to pursue their hopes and dreams in the USA.

What if the kids are no longer children by the time your sibling gets the green card under the F-4? What if they have already turned 21 or more as a child is one who is under 21 under the Immigration and Nationality Act? These are all good and relevant concerns. Fortunately, some of these kids may be able to freeze their age under the Child Status Protection Act. If the child is 23 years old at the time the date on the I-130 petition becomes current, then under INA § 203(h)(1) it is possible to subtract from that age the time that the I-130 petition took to get approved from the time it was filed. For example, if the USCIS took two and a half years to approve the I-130 petition from the date it was filed, then you can subtract 2.5 years from the child’s age, and if the age is reduced so that it falls below 21, then the child can still immigrate with the parent. Thus, it is actually to your advantage if the I-130 petition takes a long time to get approved as that much more time can then get subtracted from the age of a child who may have turned over 21 on the date of visa availability. Fortunately, the processing time at the Vermont Service Center for an F-4 today is just short of 2 years. Processing times will be longer if the USCIS issues a request for more evidence before approving the I-130 petition.  So don’t get too anxious if the I-130 under the F-4 does not get approved so quickly. This time will prove to be precious to reduce the age of a child who is over 21 a decade or more from today, when the visa becomes available under the F-4.

If we had a better immigration system, I would not waste time extolling the so called virtues of the F-4. But when so many preference categories have gone out of whack – 70 years for the India EB-3 and the EB-2 seems to also be going the same way– then we must grasp at straws and the F-4 is certainly one until Congress is able to bring sensible reforms to our immigration system.