Court Overturns INS’ Decision On Employment Based (EB-2) Cases

In May of 2000 the U.S. District Court for the Northern District of California issued an important decision in the case of Chintakuntla v. INS (Case No.: C-99-5211), granting rights for reconsideration of certain EB-2 petitions which had been summarily denied by the INS. The critical issue centered on the INS policy of denying EB-2 applications when form ETA 750 specifies a Bachelors degree plus five years of “Progressive Experience” in lieu of a Master’s degree.

The July 3, 2000 issue of the Federal Register (Volume 65, No. 128) begins by citing the Chintakuntla decision, then states “this notice is necessary to ensure that all persons who are able to file motions to reconsider in accordance with the Court order have notice of their right to do so.”

The July memo is actually an illuminated reflection of the INS March 20, 2000 memo, which was published in order to simplify the process of EB-2 review for adjudicators. The memos, taken together, clarify some very important points concerning EB-2 interpretation.

§ A successful EB-2 application must satisfy two crucial elements. First, the position in question must call for an advanced degree, and second, the applicant must hold the required advanced degree or its equivalent. “If the job itself does not require an advanced degree professional, the petition must be denied, even if the alien beneficiary actually is an advanced degree professional.”

§ The long-standing INS equivalency description says that an advanced degree is equivalent to either a baccalaureate degree (U.S.) or its foreign counterpart combined with a minimum five years of “Progressive Experience” in the specialty.

§ As stated in the March memo “‘Progressive Experience’ is not defined by statute or regulation. Its plain meaning within the context of EB-2 adjudications is relatively simple: employment experience that reveals progress, moves forward, and advances toward increasingly complex or responsible duties. In short, progressive experience is demonstrated by advancing levels of responsibility and knowledge in the specialty.” Progressive Experience may not be easy to recognize especially when a complex technical position is involved. In such cases adjudicating officers should request plain-meaning descriptions to ascertain whether the required experience exists.

The July memo charges INS officers with the responsibility of considering ETA-750 forms in their entirety rather than focusing on individual sections of the form. The memo also goes into great detail in regards to qualifications and filing procedures for EB-2 Motions to Reconsider.