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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Bloggings: September 28, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

September 24, 2007

"Or Equivalency" Requires Further Definition

Question:

I received an LC approval for computer analyst from India who has an M.E. in Industrial Engineering and Bachelor in Mech Engineering. The ETA-750 required Bachelor's or equivalent degree in computer science or related field and 3 yrs exp. Nebraska Service Center sent an I-140 RFE: "Provide objective, verifiable documentary evidence to establish definition of "equivalent" as it was defined during occupational assessment and LC process. Such statement may include a statement from DOL explaining the term, recruitment document or that no applicant with similar qualifications as beneficiary was denied." Where do I find this?

Answer:

This is the conundrum of our times! For many years, practitioners have placed the words "or equiv" as an educational requirement in Labor Certifications. DOL reacted to this in different ways. Sometimes they ruled that the term was too vague and had to be quantified. (It appears that NSC is trying to do this in your case), and other times they stated that although it is vague, you may state it on the application, but during recruitment you would have to consider a very broad base of applicants with possible equivalencies.

Another way of looking at this is that you would have to accept any suitable combination of education, experience or training. What you have done by putting "or equiv" is to use the recruitment standard (evaluating applicants on a very broad, open ended basis) as the primary requirement in the application. The NSC can not question the requirements on the Labor Certification, once they have been approved by DOL. (In the current case they appear to be questioning the requirements, and that would be improper). However, they would be permitted to question the requirements in the context of the specific alien, i.e., to see if the alien is qualified. It appears that you may have written "or equiv" because you meant to indicate that a "foreign equivalent" would be acceptable. I cannot tell from your question what meaning you intended on the form....and if I cannot tell, neither can anyone else, including the DOL and the USCIS. One has to guess what you meant when you wrote "or equiv." My best guess is that you meant "foreign equivalent."

The USCIS Examiner certainly has no right to ask you to go back to DOL to obtain a statement from them. As a matter of policy, the Service normally reads "or equiv" to mean foreign equivalent and not "any suitable combination of education, training and experience," while the DOL normally reads "or equiv" to mean "any suitable combination of education, training and experience" and not "foreign equivalent." Based on this, and the application as a whole, you should argue to USCIS that there is nothing in the INA, DOL regulations, Technical Assistance Guide or DOL memoranda that permits or requires DOL to provide interpretations of approved labor certifications to USCIS. The DOL simply does not offer this service. As a result, you should argue that the request is ultra vires, illegal, contrary to law, and therefore an abuse of discretion. At the same time, you should argue that under the "totality of circumstances" the application clearly indicates a degree requirement (Bachelor's or Master's) and that the "or equiv" was meant to mean a foreign equivalent.  Although the DOL may not be called upon to provide an opinion, you may draw on the recruitment material in the case to shed light on this. (Interestingly, USCIS has opened the door for your to include such material, since they themselves asked for it). Review the labor certification case file and see if there is any advertisement, posting, or contemporaneous documentation that would support the point of view that "or equiv" means "foreign equivalent." Finally, you should research the requirement "or equiv" in BALCA decisions to see how BALCA dealt with this problem. As I have written above, the Board has held that vague requirements are not necessarily improper, depending on whether the job opportunity was made available to US workers on such basis and that the Employer did not reject any US workers on the basis of vague or unfounded conclusions. The USCIS request for documentation that the Employer did not reject US workers on this basis is rational but improper, since this is clearly DOL's responsibility. USCIS can not make determinations on recruitment of U.S. workers. You will need to research this among administrative decisions, memoranda and federal court decisions, however, you will find the law supports this point of view, and not the point of view of USCIS.

I am also curious why the requirements in your application do not include a Master's Degree. Since the alien has a Master's Degree, and you required a Bachelor's plus 3 years, you would have been within the SVP limits for either (Master's Degree totals four years SVP & Bachelor's plus 3 totals 5 years SVP).

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About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. He is a partner at the firm of Fowler-White-Burnett in Miami, Florida.


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