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Joel Stewart on PERM Labor Certification

Vague PERM Requirements: BA or Master's in Any Field

Rating: 4 votes, 5.00 average.

In a recent decision issued from the Nebraska Service Center, which came to me without the file number and with the petitioner information excised, the Chief of the AAO sustained the petitioner's appeal of an NSC denial for an I-140 Immigrant Visa Petition. The Employer had required an advanced degree with no specific major field of study. The Nebraska Service Center took issue with the requirement, as not qualifying to establish that the alien could be designated as an advanced degree professional. The Service Center had applied the reasoning from Matter of Shin, 11 I&N Dec. 686 (Dist. Dir. 1966) and Matter of Palanky, 12 I&N Dec. 66 Reg'l. Comm'r. 1966) old cases holding that if a degree was required, it would need to encompass knowledge that is a prerequisite to entry into the particular field of endeavor.


The current regulations, however, found at 8 C.F.R. Sec. 204.5(k)(2) state that the definition of "profession" is one that requires a baccalaureate for entry into the occupation. The AAO found, "therefore, the definition of 'profession'in that regulation, which states only that a profession must require a baccalaureatee for entry into the occupation, takes precedence over the two older cases cited in the Service Center's decision.


The AAO continued, "Although the definition of ''profession' at 8 C.F.R. Sec. 204.5(k)(2) does not state that the labor certification must require a field of study that relates to the occupation, the regulation does provide that a profession is an occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation."


In the instant case, the Employer stated a master's degree requirement on the labor certification application but did not specify any specific field of study, i.e., the employer would accept a degree in any field of study. The application actually stated in H-4, "Master' degree in "Any Major"and in H-7 "Acceptable alternate field of study: "Any Major." Aside from the Degree Requirement, the only other requirement was writtein in H-14, "Must speak and read Japanese."


The AAO noted that some professionals may require more than a baccalaureate in an unspecified field, and in those cases the USCIS would be justified in inquiring whether the labor certification that does not specify one or more fields of study can truly be considered to require a member of the professions.


However, turning its attention to the position as described in the SOC and O*Net databases, the AAO found that the position of Market Research Analysis requires a baccalaureate degree in 82% of cases. In the SOC, the Occupational Outlook Handbook stated that the required education for the occupation of Market and Survey Researchers is a bachelor's degree, or possibly a master's degree for technical positions. The OOH mentioned that prospective market and survey researchers may have studied business, marketing, consumer behavior, liberal arts and social sciences, including economics, psychology, English and sociology, mathematics, statistics, sampling theory, survey design, computer science, business administration, communications and other related disciplines.


In the instant case, the beneficiary had a Master's Degree in mathematics and economics, and the AAO held that, "The beneficiary's education is therefore consistent with the requirements of the occupation as stated in the OOH."


In conclusion, the AAO found that the petitioner established that the position certified is a profession, and the beneficiary's education was consistent with the requirements of the profession.


The AAO left for another day to question whether another type of job could qualify for 2nd preference approval if it did not indicate a specific field of study appurtenant to the degree requirement.

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