January 15, 2014
Depending on your degree, you might meet the educational requirements to file your H-1B petition but when you go to file your PERM application, be denied for not have the required level of education. The important distinction to remember when reviewing the educational requirements for these two types of petitions is that the Department of Labor (DOL) does not use the same standard as the United States Citizenship and Immigration Service’s (USCIS). The DOL has stated that it will treat years of education, work experience and training as interchangeable and that this interchangeability will only work on a one-for-one basis. This is unlike the rule the Three for One Rule that USCIS applies to H-1B adjudications. Under the three for one rule, three years of specialized training and/or work experience is equivalent to one year of college level training. This means that how the term “equivalence” is defined by each adjudicating body will have a significant impact on the analysis of the educational requirements for these two types of petitions.
To meet the educational requirements for an H-1B petition, an employer must show that the foreign national worker meets the educational requirements specified in the regulations. Generally, this means that the foreign national worker must have obtained a Bachelor’s degree or higher from an accredited college or university and that degree must be a requirement to qualify for the specialty occupation. The Three for One Rule makes the analysis of the equivalent of a three year bachelor degree for an H-1B petition much easier. The equivalent of a U.S. bachelor’s degree can be established by showing that the foreign national worker has obtained a three year foreign bachelor’s degree plus additional university level education or work experience.
To meet the PERM academic requirements, the employer must demonstrate that the academic requirements for the offered position are not greater than those defined in the OES Job Zones level and Specific Vocational Preparation (SVP) level for that position. If the educational requirements are above those listed, then the employer is required to provide a business necessity justification for the additional requirements. Applying this standard to the main categories of immigration petitions results in a higher level of proof required than for H-1B petitions.
When applying under the EB-2 category, the requirement is that the foreign national worker holds an advanced degree or its equivalent. Additionally, the regulations not only require that the foreign national worker hold an advance degree, but that the job also requires the advanced degree. Finally the regulations have also stated that “advanced degree” has the meaning of a U.S. degree or foreign equivalent degree above that of a bachelor’s. Together, these regulations mean that the equivalent of an advanced degree can only be found when the foreign national worker holds a U.S. bachelor’s degree or foreign equivalent, plus at least five years of progressive experience.
Therefore, unlike with H-1B petitions, a petitioner cannot us the equivalent of a degree through a combination of education and/or experience to support an immigration petition for an EB-2 or EB-3 professional. If the foreign national worker does not have a U.S. bachelor’s degree or foreign equivalent, that on its own equals a U.S. bachelor’s degree, then that foreign national worker cannot meet the educational requirements for an EB-2 or EB-3 professional. The only immigration petition a foreign national worker in this situation can qualify for is an EB-3 skilled worker. Thus, there is no way to demonstrate the equivalency of a bachelors or advanced degree through a combination of education and experience.
It is very important to know what agency considers the equivalent of your degree. It will have significant effects on what types of petitions you will have the ability to apply for.