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Posted
Jan 03, 2006 | updated Jan 21, 2008
The following questions and answers are based on those frequently posed to
the attorneys at the Murthy Law Firm. As a
courtesy to our clients and the immigrant community, we generously share
this useful information.
Question 1.
I have a master's
degree. Does that mean that I can get the green card through EB2?
Top
©MurthyDotCom
U.S. Citizenship and Immigration Services (USCIS) requires a job’s
requirements be at least a master’s degree or a bachelor’s degree and five
years of progressive experience to be classified as EB2 during the I-140
Immigrant Petition stage. Before one gets to the USCIS, however, three
factors related to job requirements need to be considered when filing a
labor certification (LC) with the U.S. Department of Labor (DOL).
©MurthyDotCom
The first factor is the employer's minimum requirements for the position.
The employer must require at least a master's degree or equivalent for the
position. Also, other employees in similar positions with that employer must
have masters' degrees or the equivalent. Generally, a bachelor's degree plus
five years experience with another employer could qualify for EB2, if
described correctly under the current USCIS and DOL interpretations for the
EB2 classification.
©MurthyDotCom
The second factor
is the maximum allowable educational requirement and experience requirement
for the position, according to the DOL. The DOL classifies all jobs and
assigns them a job zone, indicating the maximum allowable educational
requirement and experience requirement. So, even if the employer requires a
master's degree for the position, it may exceed the DOL's understanding of
normal requirements for the position. If the education and experience in a
particular case exceed the job zone assigned by the DOL, the case may only
proceed if the company can demonstrate business necessity for the additional
requirements.
©MurthyDotCom
The final factor is the employee's actual qualifications. S/he must hold a
master's degree or equivalent, as defined by USCIS prior to commencing the
employment.
Question 2.
I have a
three-year bachelor's degree and more than five years of experience. Can I
file as EB2? Top
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According to USCIS's current guidance, a three-year bachelor's degree from
India alone, plus five years of experience, generally will not satisfy the
requirements for EB2 classification.
Question 3.
I currently
work for a multinational company in L-1 status. Do I need to go through
labor certification?
Top
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While L1As can often qualify as first preference multinational / managers,
L1Bs typically have to go through labor certification to get their
employer-sponsored green cards. There may be some people with awards and
spectacular achievements in their respective fields who could qualify for
other special categories but, generally, the labor certification (LC) method
would be required. There are also some L1Bs who may have held managerial
positions abroad and who will be promoted to managers in the U.S., who may
be able to qualify as EB1 managers (same category for which the L1A would
apply).
Question
4.
Why does my
lawyer say that I have to check "no" for the requirements being normal for
the occupation, when the requirements are normal for the company?
Top
©MurthyDotCom
The DOL classifies all jobs and assigns them a job zone, indicating the
maximum allowable educational requirement and experience requirement. If the
minimum education and experience listed on the ETA 9089 form exceed the
Specific Vocational Preparation (SVP) assigned to that Job Zone, then the
DOL has stated that those requirements are not "normal" for the occupation
and the employer must so indicate on the ETA 9089 Form where asked.
Question 5.
Will my case
be denied if my job requirements exceed the Job Zone?
Top
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If the education and experience in a particular case exceed the job zone
assigned by the DOL, the case may only proceed if the company can
demonstrate business necessity for the additional requirements. Business
necessity is clearly established where the requirements bear a reasonable
relationship to the occupation in the context of the employer's business and
are essential to perform the job in a reasonable manner.
Question 6.
Why can't I
use experience with my current employer?
TOP
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The PERM regulations specifically state that the beneficiary must have
qualified for the position prior to joining the employer. If the beneficiary
worked for the company in the past and then left to work elsewhere and then
returned to the employer, s/he will not be able to use that first employment
with the sponsor to qualify for the position. In limited circumstances, one
can use experience gained with the same employer if the two positions are
more than 50 percent different.
Question
7.
How long will
it take for me to receive my green card (permanent residency) through the
labor certification process?
Top
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Please see our August 26, 2005 article How
Long Will it Take to Get a Green Card?, available on MurthyDotCom.
Question
8.
How soon can we
file my LC? Top
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In general, the labor certification can only be filed thirty days after the
completion of the recruitment. However, if the position is for a
professional, one of the three additional recruitment steps can occur within
the thirty-day period before filing. All other recruitment must be completed
at least thirty days before filing or the labor certification will be
denied.
Question 9.
Why does the
company have to advertise for the position? They don't have any openings
right now and do not want to hire any more people at this time.
Top
©MurthyDotCom
Any company that wants to file an LC is required by the U.S. Department of
Labor rules to advertise for the position to see if there is a qualified
U.S. worker available, willing, and able to work in the job. The purpose of
the entire PERM process is to protect U.S. workers. The DOL has decided that
in order to make sure that interested U.S. workers get a chance to
demonstrate their qualifications, the company must announce the job’s
availability in the surrounding area
Question 10.
Is it possible
to change employers after getting the labor certification and still continue
the GC process with the same priority date?
Top
©MurthyDotCom
No. An employee being sponsored with a labor certification can only use that
same priority date in a different case if the original case's I-140
Immigrant Petition is approved. There is no priority date to transfer
without an I-140 approval.
Question 11.
When can I
change employers?
Top
©MurthyDotCom
The green card is for future employment, so one does not have to work for
the company filing the LC and can change employers at any time. To continue
the GC process with the company that filed this LC, intent of the employer
and the employee might be that the employee joins the company upon becoming
a GC-holder (permanent resident). Otherwise, one will have to start a new
green card with the new employer. If one has an I-485 (Adjustment of Status)
application pending for more than 180 days with USCIS, then s/he can be
eligible for AC21 portability without starting a new case.
Question 12.
When does the
company have to start paying the prevailing wage?
Top
©MurthyDotCom
The U.S. Department of Labor requires that the company start paying at least
the prevailing wage when the LC is filed, if the individual is currently
working in the sponsored position. Otherwise, the company does not have to
pay the prevailing wage until the beneficiary becomes a permanent resident.
When the company files the I-140 Petition, however, the USCIS must be shown
ability to pay the offered wage from the LC filing date.
Question 13.
My company just received
an audit for my case. Should I be worried?
Top
©MurthyDotCom
The U.S. Department of Labor issues audits for a variety of reasons. It
might be because the employer's job requirements exceed what the DOL says is
the industry norm for the position or because the company said yes, it is a
closely held corporation. It might also just be a random audit. Every audit
should be taken seriously, with the requested information and documents
provided within the time provided.
Question 14. Can
I set up the PERM account for my employer? Why can't my lawyer do this for
us? Top
©MurthyDotCom
Only the employer is authorized to establish the PERM account. DOL requires
that an authorized company employee, who is not the sponsored alien or the
attorney, must set up the PERM account to ensure that the PERM system is
being used as intended; in other words, by an employer needing to fill an
employee position.
Question 15. Does
the employer have to interview every applicant who sends in a resume?
Top
©MurthyDotCom
An employer has to contact any applicant who appears to meet the minimum
qualifications for the position to determine if s/he is, in fact, qualified.
For example, if the job requires a bachelor's degree and two years of
experience as a computer professional, and the applicant's resume lists a
degree other than that required by the employer, the employer would not have
to interview the candidate. However, if an applicant's resume lists
education and experience that potentially could qualify, but it is not clear
on the face of the resume, then the employer needs to question the candidate
to find out if s/he is qualified for the job.
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