Some interesting points emerged from the AILA Conference in San Diego last month.
- EB 2nd Preference is current for all countries except China and India, which are both backed up to April 2007.
- EB 3rd Preference is backed up to November 2005 for all countries, except for China, 2004, and India 2002.
- Some SOC codes have moved. When using on-line information, use the most recent available for SOC Codes and Prevailing Wage Guidance. The 2000 version of the SOC is on-line but out-of-date. When searching, always add 2010 or later to get the most recent SOC codes. Some changes occurred on July 1, 2011, including SOC codes for software positions: 15-1031 has been renumbered 15-1032, 15-1032 is now 15-1033.
- While primary and alternative requirements may not necessarily be exact, they must be substantially equivalent to meet the standards of the DOL-ETA. The regulation at 20 CFR 656.17(h)(4)(i) "Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought."
- SVP is the primary determination of permissible years of experience, education or training.
- Practitioners are reminded that according to the Nebraska Service Center, the Magic Language does not downgrade 2nd preference to 3rd preference but only encourages US workers with equivalencies to apply.
- 3rd Preference has two types, skilled workers and professionals. Skilled workers have two years experience or training, while Professionals possess a Bachelor's Degree. The current edition of I-140 differentiates between these two types of EB-3, and also with the "other worker" category which is rarely used due to a more lengthy backlog.
- Education acquired while working for Employer is OK, because the regulatory prohibition applies only to experience and training and is silent pertaining to education. Education, if paid by Employer, must have been available to all workers and not only to the alien, to be permissible in a PERM case.
- Degree Requirements for 2nd and 3rd Preference are complex. 3 year diplomas (like those from India) are usually not acceptable as equivalent to US 4 year Bachelor's Degree. Transferred credit to a new institution might be acceptable, if the new institution lists the transferred credit as part of the degree requirements for a four year bachelor's degree or higher. If a US Degree accepts a foreign diploma to enter a Master's Degree program, the Master's Degree should be valid for 2nd Preference. Other fact patterns are "gray areas" and subject to interpretation on a case by case basis.
- H-14 may be used to clarify all doubts about PERM requirements, as well as entries in "J" and "K" on PERM form.
- Kellogg Requirements and the Magic Language. Much has been written on a broad, theoretical level about the Kellogg Trilogy which is the origin of the rule, however, under PERM the Magic Language is required only under certain, limited circumstances. The rule is simple: If the alien is (1) working for the employer and (2) qualifies for the minimum requirements by virtue of alternate experience requirements, the Magic Language must be inserted in H-14: "Any suitable combination of education and experience is acceptable."
- The full language of the Kellogg language in the PERM Regulation is the following at 20 CFR 656.17(h)(4)(ii): "If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable."
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.
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