< back
COURT ISSUES INJUNCTION IN EB-2 CLASS ACTION CASE
Last year a lawsuit was filed by San Francisco law firm Berry, Appleman and Leiden against the INS for denying EB-2 applications where the underlying ETA-750 said that a bachelor’s degree plus five years of experience could be accepted in lieu of an advanced degree.  This week, the court certified the case as a class action, and issued an injunction ordering the INS to accept the applications. 
The court found that the case encompassed two sub-classes.  The first are those who had EB-2 petitions pending with the INS on March 20, 2000.  The second are those whose applications are no longer pending and were denied after July 1, 1997. 
INS regulations define an advanced degree as any academic or professional degree above that of a baccalaureate degree and provides that “a US baccalaureates degree or a foreign equivalent followed by at least five years of progressive experience in the specialty shall be considered the equivalent of an advanced degree.”  Despite this language, the INS was denying applications where the ETA 750 did not require an advanced degree.  
While the INS did on March 20, 2000 issue a memorandum outlining the approach that should be taken in cases like this, because memos do not carry the weight of law, there is no guarantee that the INS will adhere to it.  Therefore, the court ordered the INS to adjudicate the applications of class members under the terms of the March 20 memo.  Members of the first sub-class, whose applications were pending on March 20, do not need to take any action, as the INS is under orders to adjudicate their cases according to the memo.  Members of the second subclass, whose applications were denied after July 1, 1997, need to file a motion to reconsider.  The INS must accept these motions even though they are untimely, and should re-adjudicate the petition under the March 20 memo.  
Because the improper denials of the EB-2 applications have severely impacted the ability of many to adjust their status, the court also ordered the INS to accept adjustment of status applications from class members who would otherwise be eligible for adjustment, but for the lack of an approved EB-2 application.  
For more information on the suit, go to http://www.usabal.com/appeal/.