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On December 5, 2007, the AAO issued an unpublished decision approving an EB2 I-140 involving a beneficiary holding a 3 year bachelor's degree and a 2 year master's degree from India that had been denied by the USCIS Nebraska Service Center. The position was for a computer software engineer, and the degree requirement was for a master's degree in "Information Technology or related field (physics is a related field)." The AAO stated:

The director declined to consider the beneficiary's Master of Science degree because it followed a three-year baccalaureate. . . In order to have experience and education equating to an advanced degree under section 203(b)(2) of the Act, the beneficiary must have a single degree that is the "foreign equivalent degree" to a United States baccalaureate degree. 8 C.F.R. 204.5(k)(2).

In this matter, however, the petitioner is not relying on a combination of multiple lesser degrees or education and experience to equate to a bachelor's degree. Rather, it is the petitioner's contention that the beneficiary's Master of Science degree . . . constitutes a foreign equivalent degree to a U.S. academic or professional degree above the baccalaureate level. . . The petitioner submits new evaluations and expert opinions all concluding that the beneficiary's Master of Science degree is equivalent to a Master of Science degree in Physics from an accredited U.S. university. . . The petitioner submitted the beneficiary's transcript for his Master's degree, which reflects two years of coursework. This transcript is consistent with the evaluations provided. Moreover, the petitioner has provided consistent and reasonable evaluations all finding that the beneficiary's Master's degree is a foreign equivalent degree to a U.S. Master's degree. Thus, we are persuaded that the beneficiary qualifies for the certified job. Commentary:

This unpublished AAO decision is significant because the USCIS Nebraska Service Center (NSC) has been generally applying an ad hoc "6 year rule" to determine whether a beneficiary's master's degree is a foreign equivalent degree to a U.S. master's degree. See Wada, Ronald Y., AILA's Focus on EB2 & EB3 Degree Equivalency, American Immigration Lawyers Association, October 2007, at pp 23-28. The NSC evaluates master's degree equivalency on a case by case basis, and may require that the petitioner demonstrate through convincing documentation and analysis that the foreign master's degree is equivalent to a U.S. master's degree. The 6 year rule has created problems for beneficiaries holding a 5 year combined bachelor's and master's degree from Europe, Russia, and other countries where such programs are commonplace. It has also resulted in routine denials for beneficiaries holding a 3 year bachelor's degree followed by a 2 year master's degree from India, with no intermediary one year postgraduate diploma (the 3+2 combination), such as the case reported here.

The AAO decision in this case is perfectly consistent with the regulations - if a beneficiary's foreign master's degree, standing alone, can be shown to be "a foreign equivalent degree" to a U.S. master's degree, the beneficiary is not relying on a bachelor's degree for EB2 eligibility, so it should be irrelevant if the beneficiary's bachelor's degree was obtained through a three year program. However, the NSC and the AAO have in numerous cases extended Matter of Shah, 17 I&N Dec. 244 (Reg'l Comm'r 1977) (an EB3 case involving bachelor's degree equivalency) beyond its facts by applying its reasoning to the evaluation of master's degree equivalency - i.e., if the underlying bachelor's degree is not equivalent to a U.S. bachelor's degree, the master's degree is considered not equivalent as well. Matter of Shah does not provide authority for this position; in addition, the EB2 degree equivalency regulation at 8 C.F.R. 204.5(k)(2) does not bar this type of equivalency. The sticking point has been what documentation USCIS and the AAO would consider sufficient to establish the equivalency of the foreign master's degree, standing alone, to a U.S. master's degree? In this case, the AAO says that multiple credible and consistent credential evaluations were sufficient.