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Dealing With Job Requirements That Exceed The "Normal" Requirements On A PERM Application, Including A Discussion Of Degree Requirements Under EB-2

by Cyrus D. Mehta

A US employer wishes to file a PERM labor certification on behalf of a foreign national employee for the position of a Senior Software Engineer, which requires a Master’s degree with at least three years of experience, or in the alternative, a Bachelor’s Degree with five years of experience. The first task of the immigration practitioner is to ensure that employer truly needs a person with the above educational requirements. It is also important to find out whether the foreign national has the requisite educational and experience requirements for the position.

As a result of the advance degree requirement of this position, upon approval of the PERM application, the foreign national could qualify under the Employer-Based Second Preference (EB-2) pursuant to § 203(b)(2) of the Immigration and Nationality Act. However, because of the ultimate objective to qualify under EB-2, the employer may likely be exceeding the requirements that may be normal for the occupation for purposes of the PERM filing.

This is not to say that the employer should only be worried about exceeding the normal requirements when attempting to classify a foreign national under EB-2. An employer may potentially exceed the normal requirements even when filing a PERM application that will ultimately qualify under the Employment-Based Third Preference (EB-3) pursuant to § 203(b)(3)(A)(i) or (ii) of the Act. For example, an employer who wishes to require a bachelor’s degree plus two years of experience for a Paralegal should also be worried about potentially exceeding the normal requirements for the position.

I. Are the Job Duties and Requirements Normal for the Occupation?

When preparing a PERM application, the immigration practitioner, at the very outset, must always endeavor to establish that the duties and requirements are normal to the position and must not exceed the SVP levels assigned by the O*Net job zones. See 20 CFR § 656.17(h)(1). In the context of ultimately filing an EB-2 petition, the position must require an advanced degree or BS + 5 years of experience. Are these normal to the position and within the SVP requirements? Even if the employer intends to file the I-140 petition under the EB-3 for say a Paralegal with a BS degree and 2 years of experience, it would exceed the O*Net description for this occupation, which currently falls under Job Zone 3, SVP of 6>7.

Note that Qs H12 on ETA Form 9089 only asks the first part: "Are the job opportunity’s requirements normal for the occupation?"

In order to decide whether to say Yes or No, consider the following analysis?

Find a comparable occupation in O*Net, http://online.onetcenter.org/, with similar duties and requirements. Most computer occupations on O*Net are in Job Zone 4. For instance, Software Engineer, which used to carry an SVP of 8 under the old Dictionary of Occupational Titles, has now been downgraded to Job Zone 4, defined as an SVP of 7>8.

Thus, first try to find another comparable occupation with an SVP of 8, Job Zone 5, such as Computer and Information System Managers. However, if the position cannot be justified under this occupation by the employer (the prevailing wages are much higher), then we need to live with Software Engineer, which is a Job Zone 4 occupation and the employer’s requirements ostensibly exceed the official requirements of the Department of Labor.

The term "SVP" stands for Specific Vocation Preparation time for the job. An SVP of 7 requires 2 to 4 years of a combination of education, training and experience for preparation for the position. An SVP of 8 requires 4 to 10 years of similar combined preparation time.

Thus, it will be difficult to establish that a position with a MS + experience is normal for a position commanding an SVP of 7 in Job Zone 4. A BS is equal to 2 years of SVP time; an MS is equal to 4 years of SVP time itself. Accordingly, the MS consumes all the SVP time for an occupation in Job Zone 4. If the Software Engineer position also calls for experience, it will exceed the SVP of 7.

Yet, O*Net has internal inconsistencies. What is the meaning 7>8 (greater than 7 but less than 8) under Job Zone 4, although O*Net says it is an SVP of 7? Also, with respect to occupations under job Zone 4, O*Net indicates that such jobs, in addition to a bachelor’s degree, require 2 to 4 years experience. Any experience over 2 years would be in excess of Job Zone 4.

There is also a strong basis to argue that the education and experience for the position should not be combined to determine whether the requirements of the employer’s position are within the SVP or exceed it. In the ETA’s prevailing wage guidance, it is clearly stated that the education and experience should be viewed as separate requirements. [1] Thus, it can be successfully argued that an employer may ask for a bachelor’s degree with four years experience, and still be within the parameters of a job zone 4 listing.

Furthermore, commentators have advocated that H12 only asks the first part of the regulation: "Are the job opportunities requirements normal for the occupation?" and the regulation at 20 CFR § 656.17(h)(1) encompasses both a qualitative and quantitative requirement. [2] Thus, if the job of Software Engineer normally requires a MS degree or a BS and several years of experience, and the duties of the position meet the skills, knowledge and other work activities discussed in the O*Net occupation, the employer could still say "Yes" to whether the job requirements are normal to the occupation even though the requirements exceed the SVP of 7.

On the other hand, the attorney may adopt the more conservative view - especially if the requirements do not fall within the qualitative parameters - and check off "No" and argue "Business Necessity" under Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989), which is now codified in 20 CFR § 656.17(h), which states: "To establish a business necessity, an employer must demonstrate the duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner."

Under the first prong of Information Industries, both duties and requirements must be linked to the employer’s specific business operations to determine whether they are reasonable in that context. Under the second prong, the duties and requirements must be related to one another, and reasonably suited, in the context of the employer’s business operations. [3]

If the PERM application is audited, and the employer indicated "Yes" under H12, the employer should continue to argue consistently that the job duties and requirements fall within the qualitative parameters of the O*Net Job Zone 4 occupation. If the employer indicated "No" on H12, s/he should be prepared to argue business necessity under the Information Industries standard.

II. Carefully Drafting EB-2 Job Requirements on a PERM Application

To ultimately qualify under the EB-2, the position described on the labor certification must require an advanced degree or a bachelor’s degree plus five years of progressive post-baccalaureate experience.

8 CFR § 204.5(k)(2) allows for two types of equivalencies: 1) a foreign equivalent degree to a US advanced degree, or 2) a US bachelor’s degree or "foreign equivalent degree" plus five years of progressive post baccalaureate experience.

If the foreign national possesses a three year bachelor’s degree, particularly from India, the certified labor certification will not be approvable under the EB-2. Even if this individual possesses a 3 year BS degree in Science from an Indian university with a one year Post-Graduate degree in Computer Science, s/he will most likely not be able to qualify under EB-2. If the equivalent formulation is not defined on the ETA 9089, the labor certification will not qualify even under the EB-3. The Nebraska Service Center (NSC), as well as the Appeals Administrative Office (AAO) has insisted that nothing less than a single "foreign equivalent degree" to a US bachelor’s degree will be acceptable. [4]

If on the other hand, the foreign national presents a three year bachelor’s degree from a non-Indian university such as the UK, Australia, France or Canada, it would be accepted by the NSC as a "foreign equivalent degree" since many of these programs include a thirteenth year of secondary education, such as the UK "A Levels" system.

For starters, regardless of whether the labor certification will qualify under EB-2, it is very important to define the equivalent degree, and many practitioners do so in H14 on ETA 9089. A formulation such as one discussed above can be defined as follows: "In lieu of a 4 year degree, employer will accept a three year degree and one year of coursework equivalent to a 4 year US bachelor’s degree" Other practitioners simply state, "will consider an equivalent degree as defined under 8 CFR § 214.2(h)(4)(iii)(D)."

Unfortunately, under the current policies of the NSC and AAO, such a definition, even if followed with five years of progressive experience, will not qualify under EB-2. In such an eventuality, the I-140 petition can be re-filed as an EB-3 Skilled Worker petition under § 203(b)(3)(A)(i). Often times, the NSC in the Request for Evidence allows the petitioner to agree to an EB-3 classification. If the degree equivalency has not been defined on the ETA 9089, it may not be approved under either EB-2 or EB-3.

Regardless of the NSC policy, it may still be worth defining the degree equivalency in the way discussed in the hope that there will be an eventual change in USCIS policy that would accept a combination of educational degrees or programs, as opposed to a single foreign degree. It is worth noting that Efren Hernandez III, Director, Business and Trade Services of legacy Immigration and Naturalization Service (INS) wrote in 2003 to an immigration attorney, "Despite the use of the singular ‘degree,’ (in 8 CFR § 204.5(k)(2)) it is not the intent of the regulations that only a single foreign degree may satisfy the equivalent requirement. Provided that the proper credential evaluations service find that the foreign degree o degrees are the equivalent of the required US degree, then the requirement may be met." [5] Although the NSC and AAO have disregarded this opinion, one can hope for its adoption in the near future in the event that AILA liaison efforts are successful on this issue.

Finally, if the ETA 9089 application is drafted with a Master’s degree requirement and with something less than a Bachelor’s and five year experience requirement (such as a BS plus 3 years), the NSC will not approve the I-140 under the EB-2 even if the beneficiary has the proper Master’s degree. The NSC has stated that under such a formulation the employer is willing to accept someone with less than the equivalency standard set forth in 8 CFR § 204.5(k)(2). [6] However, such a labor certification would still be approvable under the EB-3.


Endnotes

1 Emily Stover DeRocco, Revised Prevailing Wage Determination Guidance, B-2-Step 4 (May 17, 2005), available at http://workforcesecurity.doleta.gov/foreign/pdf/Policy_Nonag_Progs.pdf; See Also ETA, Prevailing Wage Determinations, Frequently Asked Questions, Section VI, question 9, at http://workforcesecurity.doleta.gov/foreign/wages.asp

2 Stock and Forney, The ‘New Normal’ Job Requirements: Understanding O*Net and its Role Within PERM, The David Stanton Manual on Labor Certification, Third Ed. 25, 30 (AILA 2005).

3 For a detailed analysis on dealing with business necessity under PERM, See Seltzer and Forney, O*Net, Normal Requirements, and Business Necessity, AILA 2006 Midyear Conference Handbook "The Reality of Business Immigration: Strategic Planning for the Advanced Practitioner" 55 (2006 ed.).

4 For a detailed discussion on recent decisions, See Ronald Y. Wada, PERM Strategies And Ad Hoc Rules For Beneficiaries With Three-Year Bachelor’s Degrees, 11 Bender’s Immigration Bulletin 611, June 15, 2006.

5 See Exchange of Letters between Efren Hernandez III, Director, Business and Trade Services, INS Office of Adjudications, and attorney Aron A. Finkelstein, HQ 70/6.2.8, January 7, 2003, published on AILA Infonet at Doc. No. 03041544 (posted on April 15, 2003). It is also worth noting that in Grace Korean United Methodist Church v. Chertoff, 2005 U.S. Dist. LEXIS 41351, a labor certification that required a "B.A. or equivalent" can qualify under the EB-3 Skilled Worker because "[N]either the statute nor the implementing regulations require an actual degree for approval under this classification.."

6 See Wada at 620, note 4 supra, citing 2006 Midwest AILA Conference NSC Update Q&A of April 7, 2006, published on AILA Infonet at Doc. No. 06041860 (posted April 18, 2006).

This article originally appeared on www.cyrusmehta.com on October 26, 2006.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Past Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.


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