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Can my PERM Case Be Filed under EB-2?

Q: Can My PERM Case Be Filed in the EB-2 Category?

A: First, let's clarify: determination that the case falls into the EB-2 category is made by U.S. Citizenship and Immigration Services when the agency adjudicates the I-140 Immigrant Visa Petition portion of the case using an approved PERM labor certification.

The U.S. Department of Labor, which adjudicates the PERM petition, doesn't think in terms of preference classifications such as EB-2 at all. They think in terms of the Employer's minimum stated requirements.

So, there's really no such thing as filing a PERM case as EB-2 - what happens is that a PERM case might list requirements that allow a later Immigrant Visa Petition filed with USCIS to request and qualify for EB-2 classification.

Q: OK, so what needs to be PERM filing in order for the case to qualify for the EB-2 category when it finally gets to USCIS at the I-140 Immigrant Visa Petition stage?

A: For a PERM Labor Certification case to qualify for EB-2 classification at the I-140 Immigrant Visa Petition stage, the job described in the labor certification must require at a minimum a U.S. Master's degree or the equivalent.

When we say that a U.S. Master's degree or the equivalent is the minimum requirement, we mean that either everyone hired to perform this specific job has met this requirement at the time of hire, or that there has been some substantial change in circumstances which now justifies a requirement of a Master's degree or the equivalent.

Remember that it is the job that will later qualify for EB-2 qualification, not the foreign national who is the beneficiary of the PERM Labor Certification. We often hear from foreign nationals contemplating PERM filings that they are sure they qualify for EB-2. The person may well have a U.S. Master's degree or the equivalent, but if this is not the minimum requirement of the proposed PERM job then the case will not fall into the EB-2 category.

Q: What do we mean when we say that the "equivalent" of a U.S. Master's degree would be acceptable?

A: There are strict regulations on what can be required as the equivalent for both Department of Labor purposes (so that the PERM case complies with their rules) and for USCIS purposes (so that the case can be approved in the EB-2 category). The interplay of these two sets of rules with the employer's actual minimum requirements makes this question somewhat confusing.

First, the Department of Labor's Specific Vocational Preparation ("SVP") level ranges must be used to determine equivalence. SVP is intended to determine the amount of time it will take a worker to gain the necessary skills to be able to perform a specific job. The skills can be gained through education, training or experience (or any combination of these).

For a job that requires one year of experience in addition to the Master's degree, the SVP level will need to permit at least five years (a Bachelor's and a Master's degree are accorded two years each, plus at least one additional year of experience). For such a job, an acceptable equivalent would need to add up to five years - in other words, a Bachelor's plus three years' experience.

However, this wouldn't be sufficient at the Immigrant Visa Petition stage. For USCIS purposes, a Bachelor's degree plus five years of progressively more responsible experience is deemed to be the equivalent of a Master's degree.

Finding a way to accurately express the employer's actual minimum requirements for the job, while taking into account the regulatory requirements described above, is often among the most difficult parts of the drafting process.

Q: What is the advantage of filing a PERM Labor Certification which will sustain an EB-2 determination from USCIS as opposed to EB-3?

A: Speed. The queue for available immigrant visas allotted in the EB-2 category is typically shorter than the queue in the EB-3 category. This can vary severely depending upon the individual's country of birth - high-volume immigration countries such as China, India, the Philippines and Mexico are broken out separately for counting purposes, and those born in these countries may have significantly longer waits than those born everywhere else.

While a foreign national with a labor certification and immigrant visa petition approved in the EB-2 category may still have to wait before beginning the final stage of the permanent residence processing (whether that be Adjustment of Status processing or processing through a U.S. consular post abroad), that wait will be shorter than that of a foreign national with a labor certification and immigrant visa petition approved in the EB-3 category.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.