Recently an Employer provided the case history of a denial based on the fact that the alien obtained a Master's Degree while working for the Employer.
The alien who had only a Bachelor's Degree, had been hired to work in the IT field with an H-1B visa. During the time that the alien was in H-1B status, he obtained a Master's Degree.
After obtaining the Master's, the Employer filed an application for PERM with the minimum requirement of a Master's Degree.
The occupation for the PERM application was a related IT occupation, not the same that was used for the H-1B visa.
If the Employer had paid for the degree, it might appear that the alien had obtained a special benefit to prepare him for the new position, that other possible job candidates did not receive. However, since the alien himself paid for the educational program, the regulations had not been violated.
While there is nothing per se wrong with the attainment of an educational degree, the Employer used the Master's Degree to establish minimum requirements in the PERM case, while maintaining a Bachelor's Degree fr the alien in the H-1B visa.
In this situation, the Employer could not change the minimum requirements midstream, unless the new position was different than the old and had a different set of requirements.
The H-1B and PERM cases had different SOC codes according to the O*Net, so that the requirements could have been "upgraded" if the job required a higher level of education.
Unfortunately, when the Employer submitted the prevailing wage request, the DOL issued used the old SOC code, not the new, apparently because of some ambiguity in the job descriptions.
The misunderstanding resulted from the fact that the new job contained some technical computer languages that were described in abbreviated form, without elaboration, and it appears that the DOL did not understand that there were substantial differences between the two jobs.
The alien is working on an H-1B visa but cannot extend it beyond the sixth year, unless the application for PERM was begun before the beginning of the sixth year. The application was, in fact, begun before the beginning of the sixth year H-1B, but with the PERM application now denied, the alien can only continue to renew the H-1B visa if the PERM application is pending, including an appeal of the PERM case.
The problem is that the DOL has a rule that the Employer cannot file two applications for an alien at the same time. If a new application for PERM is required, to correct the error in the prevailing wage determination, the application would be denied, unless the positions are different.
The Employer would have to prove that the two positions are, indeed, different -- a fact that was failed to be proven in the first PERM application.
The Employer must now decide whether to appeal the denial of the first application and file a new application for the alien in a new occupation, however, the new application could be received by DOL with hostility, unless there is clear and convincing documentation that the two applications are for different occupations.
Another option would be to file a new application for PERM, without appealing the first PERM case, and obtaining additional time for the alien to continue working in H-1B status. This can be done, if the alien changes status, and then returns to H-1B status after the completion of one year after the filing of the new PERM application.
Sounds complicated? That's the reality of PERM!
