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Joel Stewart on PERM Labor Certification

Bachelor or Equivalent Denials Spreading from 2nd Preference to 3rd Preference

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It is now well established that in a 2nd preference petition, the alien must have a full bachelor's degree, not a combination of education and work experience not amounting to a matriculation in a degree granting university. In this sense, the 2nd preference is unlike an H-1B visa which permits substitution of training or work experience under the three-for-one standard instead of a diploma. Accordingly, in 2nd preference proceedings, USCIS interprets the phrase "bachelor or equiv" on a labor certification form to mean a foreign equivalent, and not a combo-equivalent.

The controversy, however, has recently spread to the 3rd preference, as well as the 2nd preference. I recently reviewed several cases sent to me by colleagues. In these cases, the USCIS denied the petitioner's 3rd preference petition for the same reasons that they would deny a 2nd preference. The labor certifications stated that a bachelor or equivalent was required to satisfy the educational requirement, as well as years of experience to satisfy the experience requirement.

One should stand back for a moment and review the requirements for 2nd and 3rd preference. To qualify for 2nd Preference, the petition must document that the alien has an Advanced Degree or be Exceptional. Exceptional aliens do not require a degree, but may qualify merely by documenting the " Exceptional Alien " criteria listed in the regulations.) Additionally, in cases where the alien has an advanced degree, a National Interest Waiver is possible (although not probable!) for aliens who are qualified.

If the alien does not possess an advanced degree, the alien may qualify by documenting the attainment of a Bachelor's Degree plus five years progressive experience. The degree in such cases may not be a combination of education and experience, but only a pure degree resulting from matriculation in a degree-granting program.

Yet many lawyers are accustomed to filing H-1B applications, where they may show the alien is qualified by a combination of education, experience or training. These lawyers transfer their H-1B concepts to labor certification practice and draft applications that state that the employer will accept a Bachelor's or Equivalent. Therein lies the problem. What works for H-1B does not work for Labor Certification.

The Third Preference is quite different from the Second Preference. In the 3rd, the alien may qualify either by having a Bachelor's Degree, or two years of post-secondary education (training) or two years of experience. The requirements sound very much like the now-familiar Magic Language -- Any suitable combination of two years education, experience or training is acceptable.

In the cases I have seen, the employers required a Bachelors or Equivalent and more than two years experience. In filing a 3rd preference petition, it should be clear that if the requirements include two years ore more of post secondary education and two years or more of experience, the alien may qualify for 3rd preference under either category, i.e., either education or experience, if they amount to two years or more. Yet USCIS denied cases where the petition required years of experience and the alien possessed years of experience, where the petition also required a Bachelor Degree or Equivalent and the alien did not have a pure Bachelor's Degree, but only one that was equivalent based on education, experience or training.

The reason the Bachelor's or Equivalent is relevent to the 2nd Preference is that the statute states that the alien must have an advanced degree or a Bachelor's Degree plus five years experience, and in these cases the Bachelor's Degree may not be based on a combination of skills, but only on the attainment of a full Bachelor's Degree granted by an accredited university.

However, this standard, dictated by statute for the determination of 2nd preference, has nothing to do with 3rd preference. USCIS can not apply the 2nd preference " pure degree " requirement to 3rd preference. The reason is that in the third preference, the issue is not a statutory requirement but the employer's own requirement. The employer sets the minimum requirements and may require and accept any kind of experience, education or training that is legal. If the Employer wants to require a Bachelor or Equivalent, in the sense of an equivalency based on education and experience, and not just on education, the employer may do so.

In denying 3rd preference petitions with a " Bachelor or Equivalent " listed as a requirement, USCIS is misapplying the narrower, stricter requirement for 2nd preference to the third preference. Practitioners need to rebut such arguments with a strong legal memorandum documenting that the USCIS is applying an incorrect legal analysis requiring the 2nd preference statutory requirement of a Bachelor Degree instead of the more flexible 3rd preference standard which flows from the Employer's actual, minimum requirements and not from a statutory standard.

The best remedy is to draft Labor Certifications more carefully, avoiding phrases like " or equivalent " where the equivalency is not defined, and not requiring Bachelor Degree where the alien does not possess a full-fledged Bachelor Degree but only possesses an expert opinion of equivalency based on a hodge podge of courses and experience.

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