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Joel Stewart on PERM Labor Certification

Obtaining Master's Degree for PERM

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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 Master's Degree Program, it might appear that the alien had obtained special training to prepare him for the new position, a benefit that other possible job candidates did not receive. However, since the alien himself paid for the educational program, the regulations had not been violated in that regard.

The Employer used the Master's Degree to establish minimum requirements in the PERM case, while maintaining a Bachelor's Degree as adequate for the alien to work on 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 requirement of a Master's Degree could have been "upgraded" from a Bachelor's Degree, provided that the new job was more challenging and required a higher level of education.

Unfortunately, when the Employer submitted the prevailing wage request, the DOL selected the same H-1B SOC code, not the new one anticipated by the Employer, apparently because of some ambiguity in the job duties.

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 these were sophisticated languages, creating substantial differences between the two jobs.

Now with a PERM denial, the Employer must appeal the denial to extend the alien's H-1B beyond the sixth year. This is due to the rule that an H-1B cannot be extended beyond the sixth year, unless the application for PERM was begun before the beginning of the sixth year.

The Employer also needs to file a new PERM application, clarifying the differences between the two job occupations, one requiring a Bachelor's Degree and the other requiring a Master's. 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 new  PERM 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 not to appeal the PERM denial, but to file a new application for PERM, and to focus on a way to obtain additional time for the alien to continue working in H-1B status. This can be done, if the alien changes status from H-1B status to a different status, and then returns to the H-1B status after the new PERM application has been pending for one year. In this manner, the alien can continue to extend H-1B status while waiting for the new PERM case to be completed.

Sounds complicated?  That's the reality of PERM!

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