This is one of a multi-blog series about degree requirements and equivalency in PERM Labor Certification. Additional PERM information is available on our website.
A U.S. employer that wishes to sponsor a foreign national employee for a permanent position must usually establish that there are no qualified U.S. workers to fill the position. The PERM process was developed as a method for testing the U.S. labor market for qualified workers and, as part of the process, the U.S. employer must outline the minimum educational and experience requirements for the position.
If no qualified U.S. workers are found, the foreign national being sponsored for the position must demonstrate, at the I-140 stage, that they meet the qualifications for the position as stated in the U.S. employer’s recruitment. As not all educational systems are created equally, it is incumbent upon the foreign national to sufficiently establish that their foreign qualification is equivalent to the required U.S. degree.
Degree equivalency can also be extremely important when determining a foreign national’s employment-based preference category and, essentially, their place in line for a green card.
Second Preference Category
To qualify for the second employment-based category, a foreign national must have the equivalent of a U.S. master’s degree or bachelor’s qualification plus five years of progressive, post-baccalaureate experience. Generally, a combination of 6 years of graduate and undergraduate education that culminates in a master’s qualification will be considered the equivalent of a U.S. master’s degree.
Such combinations could include 4 years of undergraduate education and 2 years of graduate education, 3 years of undergraduate education and 3 years of graduate education, or 3 years of undergraduate education, a 1-year post-graduate diploma and 2 years of graduate education.
Ultimately, it is important that the foreign national’s transcripts and dates of attendance reflect 6 full years of education, resulting in the award of a master’s degree.
Third Preference Category
Foreign nationals may qualify for third employment-based category if they have at least of two years of experience. If a degree is required for the position, a foreign bachelor’s qualification must be evaluated to ensure it is the equivalent of a U.S. bachelor’s degree. In some countries, a bachelor’s degree can be completed in only 3 years and, thus, may not be considered equivalent to a U.S. bachelor’s degree which requires 4 years of study.
To be the equivalent of a U.S. bachelor’s degree, the foreign degree must consist of equivalent to 4 years of undergraduate education which culminates in a single source bachelor’s degree. The foreign national must have transcripts reflecting 4 full years of education, as well as dates of attendance, that result in a single source bachelor’s degree.
H-1B Rules Are Different
It is important to remember that qualification equivalency standards for an H-1B visa are sometimes markedly different than qualification equivalency standards in the PERM context.
For example, a combination of education and professional experience that has been evaluated by a credential service to be the equivalent of a U.S. bachelor’s qualification may be sufficient for an H-1B visa, but not necessarily PERM, if a bachelor’s degree was required. It is extremely important for a foreign national with a foreign degree to have it evaluated by a reputable and credible credential evaluation service.
Degree Equivalency Challenge
A degree requirement traditionally has been challenged by the Department of Labor during the PERM process on the grounds that it is excessive for the position and not justified by business necessity. Recently, USCIS has found legal grounds to take the lead in challenging qualification equivalency during the I-140 petition on the grounds that it does not meet US degree equivalency.
While there is little case law on this issue, USCIS seems to be making the rules with little legal precedent or guidance. This creates a very fluid situation as it is expected that several cases will soon be making it to the courts to provide guidance.
It is certainly worth the extra time and energy at the beginning of an employment-based immigration case to conduct a careful and thorough examination of any foreign educational documents. It is vital to ensure a competent Labor Certification attorney has completed a credential evaluation to prevent irreparable qualification equivalency issues at the I-140 stage as the foreign national reaches the end of their H-1B stay limitation.
Shihab Burke, LLC, Attorneys At Law Can Help
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