Table of Contents
For the second and third (EB-2 and EB-3) employment-based preference categories, the first step in the process for the employer is usually to obtain an approved labor certification. For the second preference category (EB-2), the labor certification can be waived if you can obtain a national interest waiver. The labor certification is filed electronically through a program called “Program Electronic Review Management” (more commonly known as “PERM”). The filing of the labor certification typically gives a foreign worker her “priority date,” which is essentially her “place in line” for obtaining a green card when one becomes available. Once a foreign worker’s priority date is “current” on the Visa Bulletin, which is issued monthly, the foreign worker is then eligible to apply for permanent residency in the U.S.
An approved labor certification from the Department of Labor certifies that there are insufficient available, qualified, and willing U.S. workers to fill the position being offered to the foreign national at the prevailing wage and that hiring a foreign worker will not adversely affect the wages and conditions of similarly employed U.S. workers. As part of this process, the sponsoring employer is required to test the U.S. job market. Once the Dept. of Labor certifies this application, the employer can then apply the immigrant petition on behalf of the foreign worker.
There are several basic requirements for labor certification applications, including an offer of full-time, permanent employment. The offered position must have reasonable education and experience requirements that are customarily required for the occupation. The offered wage must also pay at least the prevailing wage (as determined by the Dept. of Labor) for the occupation in the area of intended employment. The employer must test the labor market to determine if U.S. workers are available, qualified, and willing to fill the offered position.
Labor Certification Recruitment Process Under PERM
The PERM labor certification process is used to test the U.S. labor market for potentially qualified U.S. workers to fill a foreign national’s proposed permanent position. As described below, the PERM regulations provide employers with very particular instructions regarding the recruitment of potentially qualified U.S. workers. Employers seeking to sponsor college or university teachers, live-in household domestic service workers or “Schedule A” employees, such as physical therapists or nurses, are subject to unique requirements which are not specifically covered below.
As part of the recruitment process, the sponsoring employer is required to take certain mandatory steps to advertise the foreign national’s position. The mandatory recruitment steps include a State Workforce Agency (SWA) job order and Sunday newspaper advertisements. Specifically, the employer must post a job order (position advertisement) with the SWA serving the area of intended employment for a minimum of 30 days. Additionally, an advertisement must appear in two editions of the Sunday newspaper of general circulation in the area of intended employment. The newspaper advertisements must include:
• The legal name of the employer;
• Directions asking applicants to send their resumes to the employer; and
• A description of the job opportunity, including the geographic area of employment.
The newspaper advertisements cannot contain a wage lower than the prevailing wage for the position, any job requirements or duties not listed in the ETA 9089 application, or terms and conditions of employment that are less favorable than those offered to the foreign national.
Further, notice of the employer’s intent to file an application for labor certification must be provided to the bargaining representative. If no bargaining representative for the occupation exists, a general notice must be posted. The notice should be clearly posted in a conspicuous location for 10 consecutive business days and contain the following information:
- State that “notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity”;
- State that “any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor”;
- The address of the appropriate Certifying Officer; and
- State the rate of pay for the position, which must be at least the prevailing wage for the position as determined by the SWA.
Notice is to be provided at least 30, but no more than 180 days before the filing of the application for permanent labor certification. If the employer normally uses in-house media (electronic or print) to post jobs, the notice must be published in the in-house media for 10 consecutive business days as well.
Employers are required to complete three additional recruitment steps beyond the mandatory recruitment. The employer can choose from the following additional recruitment options:
- Job fairs;
- Employer’s website;
- Job search website;
- On-campus recruiting;
- Trade or professional organizations;
- Private employment firms;
- Employee referral program with incentives;
- Campus placement offices;
- Local and ethnic newspapers; or
- Radio or television.
There are no guidelines from the DOL regarding the required duration for the additional recruitment steps. Employers are left to their best judgment as to what qualifies, in good faith, as a sufficient period of time to recruit potentially qualified U.S. workers.
The PERM regulations contain obligatory waiting periods which are intended to allow U.S. workers time to apply for the advertised position. Notwithstanding the required advertising and posting periods, the employer must wait an additional 30 days after the last recruitment step has taken place to file the ETA 9089 application. The only exception to this rule is that one additional recruitment step may take place within the 30 days prior to filing. However, none of the recruitment steps may have taken place more than 180 days prior to the filing of the ETA 9089.
At the close of recruitment and prior to filing the ETA 9089 application, the employer must draft a recruitment report. The recruitment report, which is signed by the employer, details the recruitment steps undertaken, the results achieved, the number of hires and the number of U.S. workers rejected, categorized by the lawful job-related reasons for such rejections. The regulations mandate that copies of the ETA 9089 and all supporting documentation be retained by the employer for 5 years from the date of filing.
Foreign Degree Equivalency rules in Labor Certification Application (PERM)
In addition to proving no qualified U.S. workers are available through the PERM process, a sponsoring employer must show the foreign national beneficiary meets the minimum education and experience requirements for the position. However, proving the foreign national meets the minimum education requirement can be difficult if the foreign national’s education was completed abroad. The U.S. Citizenship and Immigration Services (USCIS) does not consider all foreign degrees to be the equivalent of U.S. degrees. The AACRAO Electronic Database for Global Education (EDGE) is an online degree equivalency database used by USCIS when evaluating foreign educational credentials. Each petition is examined on a case-by-case basis to determine if the level of education completed by the foreign national is the U.S. equivalent of the employer’s minimum requirements for the position. The most common method for establishing a foreign degree equivalency is through a credential evaluation.
Foreign Bachelor’s Degree Issues
Typically, 4 years of progressive post-secondary education in the same or a related field, culminating in a single source bachelor’s degree, will be considered the equivalent of a U.S. bachelor’s degree. However, in certain cases even a 4-year foreign bachelor’s degree is not the equivalent of a U.S. bachelor’s degree. Moreover, some foreign bachelor’s degrees only require three years of study which creates an equivalency problem. The completion of only a 3-year bachelor’s degree precludes a foreign national from qualifying for the second employment-based preference category (EB-2).
3 YEAR BACHELOR’S DEGREE + 1 YEAR POST-GRADUATE DIPLOMA
Even if a foreign national completes additional education beyond the 3-year bachelor’s degree, it is not the equivalent of a U.S. bachelor’s degree unless the education is obtained from a single source. In other words, for EB-2 or EB-3 professional category purposes, neither education and experience nor equivalent education are acceptable alternatives. Accordingly, a 3-year Bachelor’s degree plus a 1-year post-graduate diploma are only considered equivalent to a U.S. bachelor’s degree if the post-graduate diploma was obtained from the same institution of higher education and is progressive education in the same or a related field.
TWO INDEPENDENT 3 YEAR BACHELOR’S DEGREES
Similarly, two independent 3-year bachelor’s degrees may not be considered the equivalent of a U.S. Bachelor’s degree. Commonly, to qualify as a single source bachelor’s degree, the independent degrees must have been completed at the same institution of higher education in related fields.
Foreign Master’s Degree Issues
To qualify for the EB-2 category, a position must minimally require the equivalent of a U.S. Master’s degree, or a bachelor’s degree plus 5 years of progressive experience. Generally, to hold the equivalent of a U.S. Master’s degree, a foreign national must have completed a total of 6 years of combined undergraduate and post-graduate education, in the same or a related field, culminating in the award of a Master’s degree. The USCIS will examine the foreign national’s transcripts and dates of attendance to ensure they are consistent with 6 years of education. The combined 6 years of education can be attained through various degree scenarios including, but not limited to:
- 4-year bachelor’s degree plus a 2-year master’s degree;
- 3-year bachelor’s degree plus a 3-year master’s degree; or
- 3-year bachelor’s degree plus a 1-year post-graduate diploma plus a 2-year master’s degree.
Similarly, a foreign national may have completed 4 years of post-secondary education culminating in a single source bachelor’s degree and have five years of progressive experience in lieu of a master’s degree.
Not all foreign master’s degrees are equivalent to a U.S. master’s degree. For example, some foreign institutions of higher education may grant a 5-year master’s degree without an underlying bachelor’s degree. This may qualify as the equivalent of a U.S. Master’s degree in limited situations where the employer can show the degree is in a field in which a 1-year Master’s degree program is common in the U.S. Foreign Master’s degrees that are only equivalent to a U.S. Bachelor’s degree do not qualify for the EB-2 preference category unless they are combined with 5 years of progressive experience.
There are some exceptions to the “single-source” Bachelor’s degree rule. For instance, the USCIS has accepted a 3-year bachelor’s degree and a 2-year master’s degree plus five years of progressive experience as the equivalent of a U.S. Master’s degree for EB-2 purposes. Additionally, transfer credits from a community college do not violate the “single-source” Bachelor’s degree rule.
Avoiding in Labor Certification Application Schedule A Occupations
There are certain occupations which the Department of Labor (DOL) has determined lack an adequate number of able, willing, and qualified U.S. workers. These high-demand occupations are designated as “Schedule A” occupations and allow employers to utilize a modified labor certification process that does not require the traditional PERM recruitment steps. Employers may use this alternate process because the DOL trusts that the employment of foreign nationals in such positions will not adversely affect the employment or working conditions of U.S. workers.
Schedule A Occupations: Group I and Group II
The Schedule A occupations are categorized by groups: Group I and Group II. The Group I occupations include physical therapists and professional nurses, and the Group II occupations are those in science, art, and the performing arts.
To be employed in a Group I occupation, the foreign national must be eligible to sit for or already have passed the requisite state licensing exam in the state where they intend to practice.
The PERM regulations broadly define occupations in science or art as “any field of knowledge and/or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/or skill.” Foreign nationals working in the sciences or art (including college and university teachers), or performing arts are eligible for Group II occupations if they are of exceptional ability, have been practicing during the year prior to the labor certification application and intend to continue to practice in the U.S. Moreover, the employer must demonstrate that the foreign national’s work during the past year required, and will continue to require, exceptional ability. Notably, to qualify for a Group II occupation, a foreign national need not have attended a college or university.
Schedule A Documentation
To file a Schedule A labor certification for a Group I or Group II occupation, the employer must submit the following documentation to the reviewing Immigration Officer:
- An ETA 9089 application for permanent labor certification, including a prevailing wage determination from the State Workforce Agency (SWA) in the area of intended employment; and
- A copy of the notice provided to the bargaining representative for the occupation or, if no bargaining representative exists, a copy of the notice posted for 10 consecutive business days apprising workers in the occupation of the employer’s intent to file an application for labor certification
Group I Documentation
In addition to the basic Schedule A documentation, employers applying for Group I labor certification need to include documentation of the following:
- For physical therapists, a letter or statement signed by an authorized physical therapy licensing official in the state of intended employment, stating the foreign national is qualified to take the state’s written licensing examination for physical therapists; or
- For professional nurses, documentation that the foreign national has received a certificate from the Commission on Graduates of Foreign Nursing Schools; and documentation showing they have a permanent, unrestricted license to practice in the state of intended employment or they have passed the National Council Licensure Examination for Registered Nurses.
Group II Documentation
SCIENCE OR ART OCCUPATIONS
Employers filing a labor certification for occupations in science or art must demonstrate to the reviewing Immigration Officer the widespread acclaim and international recognition accorded the foreign national by recognized experts in the field, including evidence from at least two of the following sources:
- Documentation of internationally recognized prizes or awards for excellence in the field;
- Documentation of membership in international associations which require outstanding achievement, as judged by recognized international experts; Published material in professional publications about the foreign national or the foreign national’s work (including the title, date, and author of such published material);
- Evidence of participation on a panel, or individually, as a judge of the work of others in the same or a closely related specialization; Evidence of original scientific or scholarly research contributions of major significance in the field;
- Evidence of published scientific or scholarly articles in the field, in international professional journals or professional journals with international circulation; or
- Evidence of the display of the foreign national’s work at artistic exhibitions in more than one country.
PERFORMING ARTS OCCUPATIONS
For occupations in the performing arts, the employer must provide evidence attesting to the current widespread acclaim and international recognition accorded to the foreign national through one or more of the following:
- Documentation of the receipt of internationally recognized prizes or awards for excellence;
- Published material by or about the foreign national, such as critical reviews or articles in major newspapers, periodicals, and/or trade journals (including the title, date, and author of such material);
- Documentary evidence of earnings commensurate with the claimed level of ability;
- Playbills and star billings;
- Documentation of the outstanding reputation of theaters, concert halls, night clubs, and other establishments in which the foreign national has appeared or is scheduled to appear; and/or
- Documentation of the outstanding reputation of theaters or repertory companies, ballet troupes, orchestras, or other organizations in which or with which the foreign national has performed during the past year in a
leading or starring capacity.
The ETA 9089 application for permanent labor certification and supporting documentation are submitted to one of the Department of Homeland Security’s Immigration Officers for review. The Immigration Officer’s determination is “conclusive and final” and, consequently, cannot be appealed.
Special Handling Rules for College and University Teachers in Labor Certifications Applications
College and university teachers are eligible for a modified labor certification process called “Special Handling.” The Special Handling recruitment process is an abridged version of the traditional labor certification recruitment process. The employer is not required to show there were no minimally qualified U.S. workers available for the position, but rather they must prove that the foreign national was the most qualified candidate. The employer can accomplish this by showing the Department of Labor (DOL) that the foreign national was selected using a “competitive recruitment and selection process” as discussed below.
Special Handling Qualifications
To be eligible as a college or university teacher for Special Handling, the foreign national must have classroom teaching or instruction duties at an accredited educational institution that offers a two-year associates degree or higher. The DOL has not specified a minimum number of teaching hours required to qualify for Special Handling, but the position must be permanent and full-time. It is important to note that faculty members who do not teach, such as researchers or librarians, are not eligible for Special Handling.
Special Handling Documentation
In addition to the ETA 9089 application, the employer must submit documentation of the “competitive recruitment and selection process” including a statement signed by the employer describing the recruitment process and the following:
- The total number of applicants;
- The lawful job-related reasons why the foreign national is more qualified than every U.S. candidate;
- A final report of the faculty, student or administrative body making the recommendation or selection of the foreign national;
- A copy of at least one advertisement for the job opportunity placed in a national professional journal stating the job title, duties and requirements;
- Evidence of any other recruitment sources utilized; and
- A written statement attesting to the degree of the foreign national’s educational or professional qualifications and academic achievements.
The employer must also notify the appropriate bargaining representative or, if no bargaining representative for the occupation exists, a notice must be posted for 10 consecutive business days. The notice is meant to apprise workers in the occupation of the employer’s intention to file a labor certification application. The wage offered for the position on the posting notice and, if included in any other recruitment, must be equal to or greater than the prevailing wage for the occupation in the geographic area of intended employment.
Special Handling Timelines
To make use of Special Handling, the ETA 9089 application for labor certification must be filed within 18 months of the job offer, not the date of hire. Moreover, the employer must wait at least 30 days, but no more than 180 days after the final day of the posting notice to file the ETA 9089 application.
Hire A Skilled Business Immigration Law Firm
Whether you’re a foreign professional or a U.S. employer looking to hire foreign workers, dealing with U.S. immigration law can be a daunting task. Our well-rounded and skilled attorneys at Sam Shihab & Associates will represent you and help you take the best legal paths, according to your particular situation. Our team can meet with you in a variety of locations and if you’re located far away from our local offices, you can always contact us by phone or email. The team at Sam Shihab & Associates is available to answer all your questions and discuss all the legal options at your disposal, regarding any immigration-related issues