Chintakuntla's Revenge: Can Education And Experience Co-exist Under PERM?
The DOL and legacy INS could never get together on a common approach to education and experience for labor certification. PERM continues this confusion. The absence of a shared understanding by DOL and the USCIS will discourage e-filing of the ETA 9089 and increase the chances for an audit. It will also make PERM adjudications take longer than necessary and require lawyers to prepare their cases with great care to explain why their client qualifies as an advanced degree professional under the EB-2 category, something of surpassing importance given the recent retrogression in the EB-3 preference. All of this may aptly be termed as "Chinatakuntla's Revenge", harkening back to a signal victory in May 2000 when the noted San Francisco-based law firm of Berry, Appleman & Leiden persuaded a federal district court that their client had the equivalent of a Master's degree based on attainment of a baccalaureate and five years progressive experience. While the immigration bar understandably embraced this happy result, it served to postpone the need for the DOL and USCIS to forge a consensus on these key issues, thus setting the stage for the present problem that will come center stage after March 28th.
The decision in Chintakuntla v. INS, No. C99-511 MMC (N.D. Cal) flowed from an earlier legacy INS regulation at 8 C.F.R. 204.5(k)(2) that held, and still holds, a bachelor's degree and five years progressive experience to be the equivalent of a Master's degree. On March 20,2000, the Service published a memorandum designed to provide field guidance for adjudicators when the ETA 750 Part A form did not clearly indicate whether a person with a bachelor's education must have five years post-graduation progressive experience in the profession in order to satisfy the minimum requirements for the advertised job. As part of the settlement in Chintakuntla, the legacy INS published this entire memorandum in the Federal Register on July 3, 2000. At the time, all parties could live with the resultant ambiguity, indeed, even profit by it since the labor certification system was not software driven. This will all change with PERM. What no one wanted to define will now become not a platform for advancement of our client's interests, but a potential reason for major delay in their fulfillment.
Noted immigration attorney Sheela Murthy cogently summarizes highlights of the first PERM training session held by DOL in Chicago, Illinois on January 11, 2005. She relates to her readers what DOL top brass think will trigger an audit under PERM:
"Under PERM, there are certain programmatic "flags" that will trigger DOL case audits. Audits will be triggered by responses on the forms. The DOL is using technology to detect anything odd, down to whether the phone number provided for a company is a cell phone number." http://www.murthy.com (January 27, 2005).There is going to be a lot that looks "odd" when lawyers start trying to complete the ETA 9089 form for clients who want to qualify under the EB-2, particularly if they are from India or mainland China, but do not have a Master's degree. The problem is one of nomenclature, a Master's simply means something different to DOL than it does to the USCIS. DOL thinks in terms of Specific Vocational Preparation ("SVP") levels which limit how much experience any employer can require; while these are a creature of the DOT, which will now be discarded under PERM, the SVP concept will live on within the umbrella of the O*NET job zones. For DOL, a Master's equates to four years experience. The same degree equates to far more than that when translated into immigration-speak. To the USCIS, as both Chintakuntla and 8 C.F.R. 204.5(k)(2) mandate, a Master's translates into a Bachelor's with five more years tacked on to reach the EB-2 holy grail. Since the DOL counts the Bachelor's degree by itself as the equivalent of two years work experience, when we crosswalk Chintakuntla into the world of the SVP, we wind up with a grand total of seven years for the Master's! So, something that means four years to DOL can wind up meaning a whole lot more than that. Now, when you add on to the Master's the extra requirement of work experience, the tote board count becomes even more eye poppin'.
Now, when the attorney could lay all of this out in writing for the DOL, the confusion could be contained within manageable boundaries and the trained DOL professionals got used to reviewing these tricky formulations. No problem. PERM is an entirely different animal. PERM is designed to be a web based submission submitted to contract workers who will not have anything else but the ETA 9089 form and the PERM software to guide them in deciding whether to audit or not. Whatever the extent of their training is going to be, Chintakuntla may not be on the syllabus. Section H of the ETA 9089 is where the rubber will hit the road.
Question 4 asks what the minimum education is, so you answer "Master's". This brings you to Question 6 where you specify the number of years experience that the job demands. Say, you ask for zero experience, just the Master's and nothing else is ok.. So far, so good- the EB-2 looks safe and secure, right? Take a deep breadth and motor on to Question 8 where things start getting dicey. Yes, you say to Question 8, there is an alternate combination of education and experience that is required- now you summon up all your courage to tackle 8A, remember what they taught you in law school about being a zealous advocate, and check off the box next to Bachelor's. Skip down to Question 8C which asks the seemingly innocent question about how much experience you need to complement the alternate education. AHA! Gotcha! What do you say to that one? Do you put zero experience since you listed that earlier in Question 6? If you do that, how does your client who did not earn a Master's qualify for the EB-2? What about the five years progressive experience that you need to fit snugly within the Master's? So, knowing the need to be ethical, you say that five years experience is required. That loud buzzing sound in your ear is the PERM software going haywire because your primary requirements and alternative requirements are not the same. In the software driven world of PERM, you have a problem.
Not only can the unsuspecting attorney walk into a trap over a conflict between answers to Questions 6 and 8C, but what you have likely now may burst the confines of your SVP category, so that your job requirements might no longer be regarded as "normal" for the occupation, even though this term is nowhere defined under 656.3 of the PERM regulations. Let's use a different example to make this point. Say, you now want a Master's and 4 years experience for an Engineer which has an SVP rating of 8 (4-10 years). Your client only has the Bachelor's but tons of experience. No problem, right? You simply use the Bachelor's + 5 years formula to qualify for the Master's and just add on another four years experience which the client clearly has. Don't relax just quite yet, counselor. You now have an SVP problem: the Bachelor's counts for two years + another nine years experience for a grand total of eleven years ! You are now on the wrong side of the SVP divide and there is trouble in Dodge City. The normalcy cops who guard the gates east of eden outside Question 12 are going to raise their red flag when you check off "NO" to their inquiry. However necessary your experience requirements are to the EB-2 claim, they are not normal to the occupation. By this time, your blood pressure has zoomed off the charts, your labor certification is spiraling out of control and your client is on the phone wanting to know where things went south.
There is an answer. For those cases where the attorney needs to take advantage of Chintakuntla, a web-based submission should be avoided at all costs. You must file by mail and prepare a short, well-reasoned and logical memorandum that explains why your client really has the equivalent of the Master's and is a worthy EB-2 candidate. How you are going to get around the prohibition in 656.17(a)(3) of not providing any supporting documentation with the application might be a bit of a problem, although, as both DOL and the USCIS constantly remind lawyers at every turn, legal argument does not rise to the level of documentation. In the end, the DOL and USCIS are going to have to sit down and do something they have conspicuously avoided doing, namely coming up with a common strategy to deal with education and experience for labor certification. Robert Divine and Harry Sheinfeld should buy each other a tall cold one sometime real soon and discuss how the intersection of Chintakuntla and PERM has made both of their lives more interesting. Doubtless, when the architects of PERM thought of all the possible problems they might encounter, this one was not at the top of the list. Indeed, it may not even have been on the radar screen. But, it is there now since PERM is a software-driven process. The marker that Chintakuntla laid down must be paid in full.
1 On page 17 of DOL's FAQ there is a question that bears discussing in the light of Chintakuntla: "Does the alien beneficiary need to have a bachelor's or higher degree to qualify for a professional occupation?' "No, the alien does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the US labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to US applicants and must be stated on the application form." The form itself (Section H) does not exactly allow the employer to say precisely that. Question 8 asks if there is an "alternate combination" of education and experience that is acceptable? Questions 8B and 8C follow this up by asking (1) what education and (2) what experience would be required for this "alternate combination". Now, it would seem that this combination of three questions taken together are meant to allow the employer to "accept work experience in lieu of a degree" but the words are not the same and the possibility for confusion exists. One wonders why the form did not simply use the same terms that the answer to the FAQ used so that the intent of the employer and the meaning of what the employer would accept are transparent and evident to all.
Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.
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