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Bloggings On PERM Labor Certification

by Joel Stewart

PERM: "Equivalent Degree" Memo From 1994

Many Employers and their representatives still misuse and confuse the term "Equivalent Degree" on their applications for alien labor certification.

AILA has recirculated a memorandum from 1994 which defined and explained the term "Equivalent Degree" for labor certification purposes, as it was understood at that time.

When Two Different Degrees are Equivalent

"If the Employer is requiring a Bachelor of Science Degree (BS) in Computer Science and the Alien has a BS in Math, which has been deemed to be the equivalent of a BS in Computer Science, the Employer must offer this same opportunity to US workers, hence, it is incumbent upon the Employer to indicate "or equivalent" after the recruitment requirement throughout the recruitment process and on the ETA Form."

Comment:  Please note that this advice might be outdated, and that the Employer might be better advised to state the equivalent degree (Math) instead of "or equivalent."  The requirement would then read, "BS in Math or in Computer Science."

When the Same Degrees are Equivalent

“If the Employer is requiring a B.S. in Computer Science, and the alien has a B.S. in Computer Science from a foreign university, and an equivalency evaluation of a foreign diploma determines that the alien's diploma is equivalent to a U.S. Bachelor's Degree, then there is no need for the inclusion of "or equivalent" in the labor certification process.”

Comment:  Please note that in this example, the fields of study are the same and the bachelor's degrees are equivalent, however, this advice may be archaic. The PERM form specifically asks if the diploma may be foreign, and issues arise as to sufficiency of description of the job opportunity and its requirements.

Accordingly, it may be more appropriate for Employers to indicate that a foreign diploma is acceptable by writing "or equivalent foreign degree" and not just “or equivalent.”

Other kinds of Equivalencies

The DOL memo also explains that if the Employer accepts coursework or some other benchmark of competence, including years of experience instead of a diploma, the Employer should state the equivalence with specificity and not just "or equivalent."

The DOL memorandum, dated June 13, 1994, is from Anna C. Hall, Acting Regional Administrator, to SESA & JTPA Administrators. In these hypotheses, it is assumed that the Employer has stated a degree requirement and has then written the phrase "or equivalent" after the degree. DOL also warns that the same terminology must be used consistently throughout the process, in the ads, notice of filing and other recruitment, and not just on the ETA Forms.

Kellogg Warnings

PERM Employers and practitioners should keep in mind that, in addition to putting the ‘magic language’ on the PERM form,  equivalency requirements must always be substantially similar and must be specified and quantified in the job requirements so as not to run afoul of the Kellogg rule. 

Vague equivalencies, even if approved by DOL, may be seen as inadequate by DHS which is responsible to interpret if the alien is qualified before approving I-140 Petitions.

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. 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. Author Name bio text

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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