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Joel Stewart on PERM Labor Certification

Bump Yourself Up to 2nd Preference with PERM!

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Many people are currently in the unfortunate situation of waiting for permanent residence on the third preference with a backlog of many years and no way to bring their cases to a happy conclusion.

They are not thoughtt to be qualified for the faster 2nd preference because they do not have an advanced degree, which is defined as a Masters degree or a Bachelors plus five years progressive experience.

Persons waiting on the third preference quota probably have an approved PERM case and an approved I-140 Immigrant Visa Petition.

As such, these persons can file another I-140 and use the priority date of the earlier I-140 as the priority date of the second I-140. That's the law!

Remember that the reason they have third preference approvals is because they will occupy positions requiring a Bachelor's Degree or any combination of two years experience, education or training.

But there is a second prong to the second preference which does not require any degree at all. This prong is for "aliens of exception ability." The regulations provide for aliens to qualify if they can show certain achievements and conditions. These qualifications relate to the alien and not to the job offer, although the job offer portion must demonstrate that the job require an alien of exceptional ability.

What are these criteria? They include 10 years of experience or more, a diploma (any kind of post-secondary), a certificate or license, and membership in a professional association. There are actually six criteria, and the applicant needs to show at least three apply in a given case.

This means that aliens with higher qualifications, even if filling a job requiring lesser qualifications, can bump up to second preference by filing a new I-140 petition for the same job, as long as the application states the requirement of exceptional ability. The new petition would request classification as an alien of exceptional ability.

The filing fee is $475.00, and the petitioner would have to include the same documentation as before, for the third preference petition, but focus additionally on the alien's exceptional abilities and qualifications to "bump" up to 2nd preference!

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  1. JC's Avatar
    Joel, you mention 10 criteria, but in 8 CFR 204.5(k)(3)(ii), it mentions only six. Are there others you are aware of not included in the regulations?

  2. RR's Avatar
    So Joel, even if my job as an occupational therapist requires only a bachelor's, do you mean to say I can still apply for EB2? I do have an approved PERM and I140, and I do have a diploma/degree, a license and membership to a professional organization (NBCOT and AOTA). I hope this satisfies three of the six criteria you mentioned. But what I wanted to confirm with you is the lower job requirement. Thanks.
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