Every once in a while we are asked about the possibility of filing for an EB-2 employment-based green card case for an individual who is currently enrolled in a Master’s Degree program and has not yet completed the program but will do so within a few months.
The person asking the question would like to get a head start on the process by filing the application before the final diploma and certified transcript record has been issued for the EB-2 case. Unfortunately this is not an option for a couple of reasons. The first is that the individual is required to be fully qualified for the EB-2 classification at the time that the Form I-140 immigrant petition is filed with the US immigration service.
Until the individual has actually receives the diploma and transcripts indicating the Master’s degree has been awarded, the US immigration service will not accept a claim that the individual has a master’s degree, even if they have completed all of their course work.
The second reason that this is not a viable option is that the individual must have met all of the requirements for employment before being hired for the position for which the petition is being filed. The employer cannot indicate to USCIS that it requires an individual to have a masters degree for a position if it hires an employee for that position who does not actually have the master’s degree yet.
While this situation might arise with people who are in the US on F-1 status, it more often arises in situations with individuals who are working in the US on H-1B visas and want to move to a new employer but have not yet finished their master’s degree programs.
We explain to them that not only can they not file the petition until they have the master’s degree, they cannot move to the new employer until they receive the degree or the new employer will not be able to claim that they had to have a master’s degree to begin employment with the employer.
The reason for the requirement that the employee have the degree before accepting the position is that a US employer is not allowed to indicate that there is a requirement for a job that a US worker would have to meet in order to be offered the job, if the employer does not apply that same standard to a foreign national that is hired and will have a green card case filed on their behalf.
If the employer lets the foreign national start before they actually have met all of the educational requirements for the position, then they cannot claim that those are the requirements for the position which would lead them to deny an application by a US based worker.
For this reason the applicant for the green card must have the master’s degree in hand before the petition can be filed and also before they can accept the employment with the new employer.