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MurthyDotCom and MurthyBulletin readers learned of issues raised by our firm at a USCIS National Stakeholders Meeting in our March 5, 2010 article, Murthy Takes Action : AC21 "Porting" and Employer Withdrawal of I-140 Petition. Following is the USCIS's response to another question submitted by our firm; this one on the criteria used by the USCIS to determine the equivalency of foreign degrees in the I-140 petition context. Specifically, we at the Murthy Law Firm have concerns about the USCIS's reliance upon the American Association of Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education (EDGE).
Background and Problem : USCIS Using Subscription Database
The USCIS routinely issues requests for evidence (RFEs) on I-140 employer petitions that reference ACCRAO EDGE when questioning a foreign national's educational qualifications. AACRAO EDGE is not a public source. The USCIS simply references this database, but, in our experience, does not provide copies of the documents from the database. They generally make a blanket statement that a particular degree is not from an accredited school or in an accredited program, according to AACRAO EDGE.
The USCIS, under regulation, is required to provide the petitioner with copies of any potentially derogatory information, so that the employer / petitioner can respond. The Murthy Law Firm asked for clarification as to whether adjudicators are making conclusions based on AACRAO EDGE, without providing the needed explanations and documentation.
Murthy Findings : Misplaced Reliance by USCIS on AACRAO EDGE
In order to address the USCIS's use of AACRAO EDGE, and to provide the best possible level of representation for our clients, the Murthy Law Firm subscribed to AACRAO EDGE. The USCIS sometimes asserts that a degree is not accredited according to AACRAO EDGE. However, if one actually reviews AACRAO EDGE, there often is no such conclusion regarding the particular institution. Although our firm opted to subscribe to AACRAO EDGE, the USCIS, in general, still has failed to provide required documentation in support of its findings.
Accreditation Improper - only Equivalency Required by Law
As part of our question, we also asked the USCIS to demonstrate any standards used in determining accreditation for foreign educations. We noted that the regulations refer only to possession of a U.S. degree or foreign equivalent, and do not reference the accreditation of the foreign schools. This issue was raised as we have seen instances of the USCIS having challenged the validity of a foreign degree because the issuing institution did not have accreditation at the time of degree issuance.
USCIS Response to Murthy Law Firm on Degree Equivalency
The USCIS referenced the Immigration and Nationality Act (INA), USCIS regulations and the Adjudicator's Field Manual (AFM) as setting out the criteria for evaluations of foreign degrees. The position of the Murthy Law Firm is that the law and the regulations do not refer to accreditation, only equivalency.
The USCIS stated that all sources are considered when evaluating foreign educational credentials. They note that they have received many evaluations by evaluators who cite AACRAO membership in their credentials and who reference AACRAO documents in support of their opinions. Thus, the USCIS has determined that it is appropriate to consider AACRAO materials and the EDGE database. The USCIS notes in its decisions instances in which the opinions of evaluators submitted by employers / petitioners are contradicted by information in EDGE.
The USCIS stated in response to the issue raised by the Murthy Law Firm that adjudicators have been instructed to attach a copy of the material relied upon in every RFE or adverse decision referencing material not generally available, including EDGE. The USCIS stated that the service centers will be provided with a reminder regarding this procedure.
Accreditation is Not Correct Standard
As stated, the law and regulations do not reference any need for a foreign national to possess an accredited degree. The requirements speak in terms of a foreign equivalent to a U.S. degree. However, the USCIS often focuses on whether or not the institution issuing the foreign degree was accredited at the time the degree was issued. The problem seems to stem from the fact that U.S. degrees must be accredited in order to be valid. This is part of the U.S. law, under the Higher Education Act. This law sets forth the accreditation requirement and standards. However, the fact that U.S. degrees must be accredited does not mean that, for a foreign degree to be equivalent, it too should be accredited. The systems for accreditation vary from country to country. It is common for a particular institution to be authorized by the government of a country to issue degrees, without further accreditation by any board or independent body. This is common even for well-recognized, high-quality foreign institutions. Accreditation is simply not a litmus test for degree equivalence.
It should also be noted that AACRO EDGE does not set forth a universal list of equivalent foreign educational institutions. It is a tool, a resource to be used by qualified evaluators in making their determinations of equivalency. It is rarely school specific. It gives the history of the educational system in the particular country, and other data that an evaluator needs to consider in issuing an opinion.
Conclusion
Efforts from the USCIS, in response to this issue raised by the Murthy Law Firm, to improve their procedures of providing the non-public documentation used in their decisions or RFEs should prove helpful to those who do not have access to AACRO EDGE. If the USCIS needs to locate and provide the documentation found in AACRO EDGE, this may reduce the instances in which this information is relied upon incorrectly. We at the Murthy Law Firm do believe there is the remaining issue with respect to accreditation being used as a requirement not contained in the law or regulations. These important matters will continue to be pursued by our firm to assist those who need to establish the equivalency of their foreign education to obtain the green card.
