drafting pplications to ensure i-140 pproval by edward r. litwin and marcine a. seid · 2013. 11....

INTRODUCTION

The Program Electronic Review Management (PERM) process is complicated and demanding. An approved labor certification is often a call for celebra-tion, after you have jumped through all the hoops. However, elation may be short-lived if the next step, the I-140, does not get approved. What if, even though the labor certification was successful, the progress to-wards permanent residence is stopped in its tracks be-cause, based on maladroit drafting of the labor certifi-cation application, the I-140 is not approvable?

When preparing the Employment and Training Administration (ETA) Form 9089, it is important to prepare it not only with the goal of obtaining its ap-proval, but ensuring that an I-140 will be approved as well. Here are some thoughts about issues which must be kept in mind while preparing the PERM for filing.

∗ Edward R. Litwin is the sole shareholder of Litwin & Associates, a Law Corporation, located in South San Fran-cisco. He is certified by the California State Bar Board of Legal Specialization as a specialist in immigration & nation-ality law. He was an elected member of AILA’s Board of Governors for 10 years, and has held numerous appointed positions. He is included in Best Lawyers in America, The International Who’s Who of Corporate Immigration Law-yers, Who’s Who in American Law, Who’s Who in Execu-tives and Professionals, National Registry of Who’s Who, and Strathmores Who’s Who. He is married and has four sons, who just call him Dad and could care less about any Who’s Who!

Marcine A. Seid practices immigration and nationality law in San José, California. She served as a member of AILA’s California Service Center Liaison Committee (2001–03, 2007–08, 2011) and chaired AILA’s Administrative Appeals Office Liaison Committee (2005–07). She is a frequent con-tinuing legal education speaker, both locally and nationally. In addition, she has co-authored Immigration in the Work-place (Aspen Publishers), Immigration Compliance Auditing for Lawyers for the ABA and authored/coauthored numerous articles on employment-based immigration for AILA. Cur-rently, she serves as a director of the AILA Board of Gover-nors.

The authors supplemented this article with relevant text from articles authored by A. James Vázquez-Azpiri, Jessica Choi, and Karen M. Pollins and included in The David Stan-ton Manual on Labor Certification (AILA 4th Ed. 2008–09) (the predecessor to this book).

THE FOREIGN NATIONAL NEEDS TO MEET THE REQUIREMENTS AS STATED

ON THE ETA FORM 9089

U.S. Citizenship and Immigration Services (USCIS) has the responsibility for determining whether a foreign national’s qualifications meet the employer’s requirements.1 The fact that a labor certification appli-cation has been approved does not mean that the De-partment of Labor (DOL) has passed on the sufficiency of the foreign national’s qualifications. In fact, often, PERM labor certifications are approved without any review of documentation. Although DOL may ask for documentation regarding the foreign national’s qualifi-cations, this is usually for reasons other than the suffi-ciency of the documentation, such as to determine whether the employer’s stated requirements exceed the foreign national’s qualifications. Therefore, it is im-portant to ensure that the foreign national’s documenta-tion reflects the requirements as stated on the labor certification application. Trying to prove to USCIS the foreign national’s qualifications by merely citing DOL’s approval of the labor certification will not be sufficient.2

Documentation from the foreign national that must accompany the I-140 usually is submitted to prove that the alien meets the requirements in the underlying labor certification. Those requirements may include:

The employer’s education requirements;

The employer’s experience requirements; and,

The employer’s “specific skills or other re-quirements.”

The Foreign National Must Prove He or She Meets Every Requirement

On occasion, I-140 visa petitions have been ap-proved even though a foreign national has not met eve-

1 Legacy Immigration and Naturalization Service (INS) Op-erations Instruction (OI) 204.4(d)(2); Matter of Wing’s Tea-house, 16 I&N Dec. 158 (R.C. 1977). 2 See 8 CFR §204.5(g)(1), which requires letters to verify employment, and 8 CFR §§204.5(k)(3) and (l)(3), which require an official academic record.

DRAFTING PERM APPLICATIONS TO ENSURE I-140 APPROVAL by Edward R. Litwin and Marcine A. Seid∗

AILA-DC CHAPTER FALL 2013 CLE CONFERNCE 273

ry requirement listed on ETA Form 9089. However, there is no authority that allows for this. While officer discretion may have a role in such a case, there is no authority to cite to demand or encourage an officer to exercise such discretion.

Therefore, an immigration practitioner must as-sume that the foreign national has to meet all of the requirements as listed on Form 9089. As such, it is im-portant to obtain the foreign national’s documentation as early in the process as possible.

Practice Tip: Obtain proof that the foreign national satisfies all requirements before the final drafting and filing of the Form 9089, and, ideally, even before re-cruitment, if the recruitment lists specific requirements.

While the documentation may not be necessary un-til the I-140 visa petition is filed, obtaining this docu-mentation as early in the process as possible is advisa-ble for a couple of reasons. First, having appropriate documentation on hand will relieve the uncertainty of whether such documentation will be available. Second, obtaining documentation in advance may be easier than waiting until a future date when contacts may be less available or accessible.

When documents cannot be obtained directly from a previous employer, documentation may be obtained from former supervisors who worked with the foreign national at the same place of employment. In the rare case in which the foreign national is unable to obtain any employment documentation, as a matter of expedi-ency, the employer may drop the requirement, if it is early on in the labor certification process and if the process will not be compromised.

Education Requirements

The education requirements that the alien must meet are usually spelled out on Form 9089 in H.d and H.e, and, sometimes, H.e.14.3 Working backwards from the educational documents that the alien is able to present, it is important to be sure that the alien’s quali-fications, as reflected by the education documentation, are accurately stated among the employer’s education

3 Unless otherwise identified, the sections cited refer to the version of the ETA Form 9089 submitted to the Office of Management and Budget (OMB) on Mar. 25, 2008. As most practitioners will be aware, Form 9089 was redrafted twice in 2008, and DOL has not yet released the final version. The most recent version of the new form can be viewed at 73 Fed. Reg. 16912 (Mar. 31, 2008), published on AILA In-foNet at Doc. No. 08040330 (posted Apr. 3, 2008).

requirements listed on the form. Of course, the em-ployer is the one who will establish the minimum edu-cation requirement, but the way this is identified or expressed on the form must take into consideration the documentation that the alien has available. For exam-ple, if the employer normally requires a degree in ac-counting, but the alien’s degree is in “accounting and finance,” this field of study should be included in item H.d.15b. It would be proper, therefore, to draft the min-imum education requirements as a bachelor’s degree in “accounting, accounting and finance, or related.” If the alien has a foreign degree, section H.d.15b should con-tain the title given on the foreign diploma or the field of study given by the credentials evaluator.4

The alien’s education listed in J.d.23b should match one or more of the requirements in H.c.15 or H.e.20a, which, in turn, should reflect the information on the foreign national’s diplomas and transcripts. Us-ing the immediately preceding example, J.23b would list “accounting and finance” as the alien’s major field of study (matching one of the requirements listed in H.d.15b). The education documentation and/or creden-tials evaluation also would reflect a degree in “account-ing and finance.” The Form 9089 filled out this way, along with the supporting documentation, will ensure an approved I-140, at least in regard to this factor.

Education Documentation

The documentation to prove the foreign national’s education usually consists of diplomas and transcripts. Copies are usually sufficient, but, at times, USCIS will ask to see the original diplomas or unopened official transcripts. Foreign school records should be accompa-nied by certified translations. These do not need to be notarized, but merely certified that they are “true and correct” or “true and complete” translations.

Practice Tip: Be sure that the English translations of the foreign national’s educational documents match the information contained on the Form 9089.5

On occasion, universities in foreign countries issue this documentation in English, even though that may not be the native language. USCIS may assume it is a

4 The authors recommend that all relevant foreign education be evaluated by a credentials evaluator, as will be discussed later in this article. 5 Be sure to review the dates of the translation against the original. It is easy to transpose numbers. An error of this nature can make it look like the foreign national has fewer (or more) years of education than is true.


translation and request the original language diploma or transcripts. It may be necessary to prove that the ed-ucation documents are the actual documents and not translations.

Credentials Evaluation

One of the primary purposes of obtaining an evalu-ation of a foreign education is to prevent any surprises. Many countries, for example, issue degrees that are not equivalent to a U.S. bachelor’s degree. Even so, such a degree, with the proper wording, may allow for the approval of a labor certification application. While a degree that is not equivalent to a U.S. degree may not support a foreign national in qualifying as a “profes-sional,” by paying attention to proper wording in draft-ing the PERM application, the practitioner can get the labor certification approved, as well as the I-140 in the employment-based, third-preference classification for skilled workers.6

Take another case, in which the foreign national has a foreign degree in “computational mathematics.” This degree may be evaluated as equivalent to a U.S. degree in computer science. Without the advantage of an evaluation, the requirement of “math, applied math, or related” may be listed when drafting the 9089. USCIS may request that a credentials evaluation be submitted. If the evaluation states that the education is equivalent to a U.S. computer science degree, it is like-ly that USCIS will deny the I-140, stating that the for-eign national does not meet the specifically stated re-quirements because the U.S. equivalent is not in computational mathematics. While an argument could be made that “computer science” is related to math and applied math, the USCIS adjudicating officer may not see it that way. Rather than leaving it up to an officer’s discretion, a clearly drafted form will put aside the un-certainty of having to rely on a discretionary decision.

Note: There is no need to obtain credentials evalu-ations for education received from accredited U.S. col-leges and universities.

6 For example, if a bachelor’s degree in accounting is re-quired, but the person has a three-year bachelor’s degree from a foreign country, H.14 can read “will accept a three-year bachelor’s degree in accounting in lieu of a four-year degree.” Such wording will allow the PERM application to be approved, as well as the I-140. However, the I-140 proba-bly will be approved for a skilled worker, rather than a pro-fessional.

Training Documentation

Documentation of training is not as standardized as education. There are no uniform formats. Training documentation may take the form of certificates, di-plomas, apprenticeships, letters of acknowledgment, or other forms.

Practice Tip: Whatever training is required, be sure that the foreign national can present documenta-tion that matches the requirements listed in H.17. The training documentation should be “official,” being on letterhead stationery, printed forms, or similar docu-ments. Training documents that are in a foreign lan-guage should be accompanied by certified English translations.

Experience Documentation

Years of required experience usually are docu-mented by providing letters from previous employers. According to the regulations, letters from current or former employers or trainers are sufficient.7 Such let-ters are to include the name, address, and title of the writer and a specific description of the duties per-formed or the training received by the foreign national. If such letters are not available, other documentation will be considered. USCIS normally has accepted let-ters from supervisors when a letter from the employer is not available due to the business no longer being in existence or other reasons. The foreign national also may try to use a letter from a person who worked with him or her, or prepare a self-declaration describing his or her work experience in detail, explaining the reasons why it is now impossible to obtain a verification letter and attaching secondary evidence such as pay stubs, job offer letter, or W-2s. Neither of these has any as-surance of being accepted, but they could be, and ordi-narily are accepted, in the discretion of the USCIS of-ficer.

Employment letters should be signed by persons in the company who have direct knowledge of the alien’s work experience, such as managers or human resources (HR) personnel. Letters signed by coworkers have had mixed probative value. The letters should be signed by persons who directly saw the alien or who have access to records that cover the whole time that the alien was employed. Therefore, a manager that worked at a com-pany for two years can attest to only two years of the alien’s four years of experience. On the other hand, a

7 8 CFR §204.5(g)(1).


person in HR who has access to an alien’s employment records can attest to the alien’s total period of employ-ment.

Experience documentation normally covers two aspects: (1) the quantitative amount of time that the foreign national worked for the employer and (2) the nature of the work. For example, the employment letter may indicate that the foreign national worked “for two years as a Systems Engineer,” thereby attesting to the amount of time and the nature of the work. In addition, it may be necessary for the employment letters to be more detailed in order to identify other factors in the foreign national’s employment that may qualify the alien to meet the “specific skills” or other requirements of section H.c.14.

Practice Tip: Many employers are not willing to provide experience letters in sufficient detail necessary to prove a foreign national’s experience. For example, an employer’s policy may be to verify only dates of employment and title, but not give any details as to the specific job duties, tools used, expertise gained, etc. In such a case, the employer’s letter should be supple-mented by letters or affidavits from supervisors or co-workers who have first-hand knowledge of the foreign national’s job duties. Such letter(s) or affidavit(s) should include: (1) Name and location of the prior em-ployer; (2) Supervisor’s/co-worker’s position with the prior employer, dates of such employment and how the supervisor/co-worker knew the foreign national; (3) Dates of the foreign national’s employment with the prior employer, and; (4) Supervisor or co-worker’s cur-rent contact information.

If possible, supporting evidence of past and current contact information should be provided.

It is important to note that the experience must comport with the experience requirements as listed in H.d or H.e, as well as Section J.e (foreign worker expe-rience). It is important, if possible, to know what in-formation the letters will contain before filing Form 9089 to ensure that the form is drafted appropriately. Some employers and attorneys will not file the 9089 until the letters have been obtained from the previous employers.

Employer Unavailability

What should be done if the alien no longer knows his or her managers or HR personnel from a previous employer or, even worse, if the employer’s wherea-bouts are unknown? Letters from former coworkers

have been successful in the past, but have been ques-tioned recently by USCIS.

On occasion, affidavits from the foreign national have been acceptable upon showing that other docu-mentation is unavailable. However, such affidavits may be looked at as self-serving and, therefore, of little evi-dentiary value.

Practice Tip: An affidavit may have more credibil-ity if supported by secondary evidence such as pay stubs, a job offer letter, or tax records.

Documentation of Special Requirements

Requirements listed in H.d and/or H.e usually are documented by letters from previous employers or by records from schools at which the foreign national may have gained knowledge of, exposure to, or experience with certain requirements.

If the foreign national gained the special require-ments or specific skills while working for an employer, the employer’s experience verification letter should also confirm these qualifications. It is important to ob-tain these letters early on in the PERM process to know the correct terminology that should be used in H.c.14. Matching wording of H.c.14 and section J.e to reflect the wording that is contained in the verification letters will assure that the I-140 will not be denied based on inconsistency between these sections.

If the foreign national, through studies, has gained a special skill or qualification, school catalogues or letters from teachers or professors should be obtained.

Note: Experience may not have been gained with the employer filing the PERM application unless it was gained in a position with duties that are at least 50 per-cent different than those in the job offered in the PERM application.8

Acceptability of Foreign Degrees

Degrees listed in H.d and H.e relate to U.S. de-grees. In the past, using the term “or equivalent” meant that the employer would accept a foreign diplo-

8 See 20 CFR §656.17(i), and the comments in the preamble to the PERM regulations, found at 69 Fed. Reg. 77354, stat-ing that a “’substantially comparable’ job or position means a job or position requiring performance of the same job du-ties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the per-centage of time spent on the various duties, organization charts, and payroll records.”


ma/degree that is equivalent to the U.S. degree required by the employer. H.f.21 now specifically asks whether the employer will accept an equivalent foreign educa-tional degree. If the foreign national qualifies based on a foreign degree, and even if that degree is evaluated to be equivalent to a U.S. degree, if H.f.21 states “no,” the I-140 will be denied by USCIS.

Some attorneys continue to use the term “or equiv-alent,” which is probably redundant because of the wording of H.f.21. Even if the term is inserted in H.c.14, it is imperative that H.f.21 be answered “yes.”

Degree Equivalencies in the PERM and I-140 Context

For a number of reasons, an employer may prefer a degree, but the foreign national may not have an actual degree. Under the H-1B regulations,9, there are four different ways to establish a degree equivalency:

An evaluation from a college or university official who has authority to grant college-level credit for training and/or experience;

The results of recognized college-level equivalency examinations or special credit programs;

Certification or registration from a national-ly recognized organization or society that grants such certifications or registration to persons who have achieved a certain level of competence; or

A determination of equivalency by USCIS based on the formula three years of training and/or work experience for each year of col-lege-level training the alien lacks.

These methodologies of determining degree equiv-alencies are found only in the H-1B regulations, and while they apply to H-1B petitions, they do not auto-matically apply to labor certifications and I-140s. There are no corresponding DOL regulations or similar regu-lations that pertain to I-140 adjudications.

Anecdotally, attorneys have been known to require a degree “or equivalent,” and at the I-140 stage have submitted “experience evaluations.” While the evalua-tions have been used to gain the foreign national an H-1B, they will not necessarily support the approval of an I-140. Understanding this, some attorneys have inserted

9 8 CFR §214.2(h)(4)(iii)(D).

language in H.14 that an experience equivalency will be accepted in lieu of a bachelor’s degree. Educational experience equivalencies are certainly acceptable, as long as the term “or equivalent” is defined on the Form 9089 to include them.

A problem could arise when the employer does not define the term “or equivalent.” If there is no definition on Form 9089, USCIS normally will define the term to mean “a foreign equivalent degree.”10 Thus, a foreign national who has earned only a three-year bachelor’s degree but who possesses an otherwise equivalent combination of education and experience most likely will have an I-140 petition denied. The petition could be denied based on the fact that, with only a three-year bachelor’s degree, the foreign national is not consid-ered a “professional.” Even worse, the foreign national may not be deemed a “skilled worker,” since, without the equivalent of a degree clearly stated, the foreign national fails to meet the degree requirement on Form 9089. Therefore, although labor certification has been granted, an I-140 will not be approved.

It should be noted that in Grace Korean United Methodist Church v. Chertoff,11 and SnapNames.com v. Chertoff,12 the court overturned USCIS’s denials and found that the foreign national met the degree equiva-lency standard even when “or equivalent” was not de-fined. The court reasoned that USCIS did not have the authority or expertise to apply its own definition of the term “or equivalent” and that DOL, being responsible for reviewing and adjudicating the labor certifications, should define the job qualifications of the labor certifi-cation. Grace Church and SnapNames.com are both Oregon district court cases and are, therefore, not bind-ing on either the Administrative Appeals Office (AAO) or the USCIS service centers.13

Practice Tips: To avoid the necessity of appeals and court cases, it is incumbent on the drafter of the labor certification to clearly define “or equivalent”

10 Matter of Shah, 17 I&N 244 (R.C. 1977). See also AILA InfoNet Doc. No. 08030368 (posted Mar. 3, 2008). Contra Grace Korean United Methodist Church v. Chertoff, 437 F. Supp. 2d 1174 (D. Ore. 2005), published on AILA InfoNet at Doc. No. 05111563 (posted Nov. 15, 2005). 11 437 F. Supp, 2d 1174 (D. Ore. 2005). 12 No. CV 06-65-MO (D. Ore. Nov. 30, 2006). 13 For a more detailed analysis of Grace Church and Snap-Names.com, see R. Wada, AILA’s Focus on EB-2 and EB-3 Degree Equivalency (AILA 2007).


when intending to use a combination of education or experience.

EB-3 Classification

Two employment-based classifications are possi-ble with an approved labor certification: second prefer-ence and third preference. Subclassifications available for third preference include professionals and skilled workers.14 To qualify for the third preference as a “pro-fessional,” the employer’s actual minimum require-ments must be at least a U.S. bachelor’s degree and the foreign national must possess at least a U.S. bachelor’s or foreign single-source equivalent degree. A foreign national may qualify in the third-preference category as a “skilled worker” if the employer’s minimum re-quirements are at least two years of education, training, or experience, and the foreign national meets the two-year requirement.15

Therefore, although it may not be possible for a foreign national who possesses a three-year bachelor’s degree to qualify as an EB-3 “professional,” the foreign national may still be able to qualify in the EB-3 classi-fication as a “skilled worker” if Form 9089 is drafted with the proper language. The following phrases were indicated as sufficient by the Nebraska Service Center to ensure that the I-140 petition be considered for the EB-3 skilled worker category.

Will accept a combination of degrees or di-plomas;

Will accept three–or four-year degrees;

Will accept educational equivalency evalua-tion prepared by qualified evaluation service or in accordance with 8 CFR §214.2(h)(4)(iii)(D);

Will accept a bachelor’s equivalent based on a combination of education as deter-mined by a professional evaluation service;

One year of experience in the job offered will substitute for one year of education to-ward a bachelor’s degree;

Will accept a single degree or any combina-tion of degrees, diplomas or professional

14 A third subclassification, “other workers,” is also availa-ble, but that classification is not discussed in any depth in this article. 15 8 CFR §204.5(l)(2).

credentials determined to be equivalent by a qualified credential service.16

If the employer’s educational requirement is a bachelor’s degree, the 9089 drafter should indicate “bachelor’s degree” as the primary requirement in sub-section H.d.15. and the alternate requirement should be placed in H.e.20 using the phrase as most appropriate to the situation.

EB-2 Classification

In order to qualify in the second-preference catego-ry as a member of the professions, the foreign national must hold an advanced degree or equivalent. A U.S. baccalaureate degree or foreign equivalent degree fol-lowed by at least five years of progressive experience can serve as an equivalent of a master’s degree. Ascer-taining the correct educational level of the alien will help assure the desired results.

Master’s Degree

Not every foreign master’s degree is considered equivalent to a U.S. master’s degree by USCIS for sec-ond-preference purposes. Any error in properly as-sessing the alien’s education could lead to a disap-pointment at the I-140 stage.

Assuming that the employer requires a master’s degree, it is important to ascertain whether the foreign national has such a degree. The most common standard is a four-year bachelor’s degree followed by a two-year master’s degree. However, there are many curricula that offer different educational schemes. Some coun-tries, including India, Canada, and Australia, have three-year bachelor’s degrees. Master’s degrees often are granted after two or three years of additional stud-ies. Often, credentials evaluators will evaluate a three-year bachelor’s degree plus a two-year master’s degree as the equivalent of a bachelor’s degree plus one year of additional master’s level of education. A three-year bachelor’s degree and a three-year master’s degree is often evaluated as a bachelor’s degree (three years plus one year) and a master’s degree (additional two years of education). It should be noted that the degrees must be in the same or related fields to be equivalent to a U.S. master’s degree.

16 “AILA Liaison Committee Meeting at NSC, Q&As” (Apr. 12, 2007), published on AILA InfoNet at Doc. No. 07060161 (posted June 1, 2007). See also R. Wada, AILA’s Focus on EB-2 and EB-3 Degree Equivalency (AILA 2007).


When the employer’s requirement is a master’s degree or equivalent, H.c.14 on the Form 9089 may be used to define this phrase to mean “will accept a three-year bachelor’s degree plus a three-year master’s de-gree as equivalent” or “will accept six years of higher education culminating in a master’s degree.” Such def-initions will be sufficient to get an approved labor certi-fication, since the term “or equivalent” is defined in terms that the foreign national meets. At the present time, it is probable, but not guaranteed, that USCIS will accept this for second preference.17 If not, because the foreign national meets the requirements as defined, he or she will be eligible for third-preference classifica-tion.

Practice Tip: It is absolutely essential to define the phrase “or equivalent” with great specificity.

The alternative method to qualify for EB-2 classi-fication is to require a bachelor’s degree plus five years of progressive post-baccalaureate experience. As stated above, USCIS normally will not equate a three-year bachelor’s degree to a U.S. bachelor’s degree, but a combination of education—that is, combining a three-year degree with additional education—may be equiva-lent to a bachelor’s degree. The term “single-source degree” relates to the situation where a person does not have a degree from a foreign educational program, but a combination of degrees and/or diplomas. USCIS normally wants to see a four-year bachelor’s degree. However, some countries issue bachelor’s degree after three years. For example, a person from India may have a three-year bachelor’s degree. This will normally not be considered the equivalent of a U.S. bachelor’s de-gree. However, when a person also receives a one-year postgraduate diploma, the evaluators quite often re-evaluate such education as equivalent to a U.S. bache-lor’s degree. This normally will be acceptable to quali-fy for EB-3 classification. However, such “combination degrees” will not be sufficient for EB-2 classification since USCIS normally wants to see a “single-source” bachelor’s degree to qualify under the “or equivalent” clause of INA §203(b)(2)(A).18

17 However, some credential evaluation companies claim success in their ability to submit convincing expert opinions that result in EB-2 approvals. 18 See Kapoor, Litwin and Shore, “Best Practices in Key Areas of PERM Labor Certification: The Job Description, Minimum Requirements, and Recruitment Strategies,” Im-migration & Nationality Law Handbook 104–05 (AILA 2008–09 Ed.). See also R. Wada, “The PERM Strategies for Beneficiaries Holding 5-Year Master’s Degrees,” Immigra-

Failing to meet the educational prong, the alien will not qualify, even if he or she has five years of pro-gressive experience.19

A foreign four-year bachelor’s degree normally will be considered to be equivalent to a U.S. degree and will qualify the foreign national for EB-2 classification if he or she possesses five years of progressive experi-ence following completion of the degree. A three-year degree with a one-year postgraduate diploma, as is common in India, probably will not be considered a bachelor’s degree for I-140 purposes, even though the person may have used the same education to qualify for H-1 status. However, a three-year degree that follows a year of postsecondary university preparatory education may be sufficient, if properly documented and ex-plained in a thorough credentials evaluation, which determines that the one-year preparatory education is the same or equivalent to the first year of a four-year program.

Below are additional examples of combinations of degrees that USCIS will accept as equivalent to a bach-elor’s degree for purposes of qualifying for EB-2 clas-sification.

A three-year bachelor’s degree plus a two-year Indian master’s degree will be consid-ered equivalent to a U.S. bachelor’s degree plus one year of education. The foreign na-tional would require five years of progres-sive post-baccalaureate experience to quali-fy in the EB-2 classification.

A three-year bachelor’s degree plus a two-year Indian master’s degree will be consid-ered equivalent to a U.S. bachelor’s degree plus one year of education. The foreign na-tional would require five years of progres-sive post-baccalaureate experience to quali-fy in the EB-2 classification.

A three-year bachelor’s degree plus a two-year master’s degree plus a one-year Indian postgraduate diploma. This combination will be considered equivalent to a U.S.

tion & Nationality Law Handbook 391 (AILA 2009–10 Ed.); “NSC Liaison Committee Clarifies Recent NSC Comments on Degree Equivalency for EB-2 I-140s” (June 7, 2007), published on AILA InfoNet at Doc. No. 07060773 (posted June 7, 2007). 19 See R. Wada, AILA’s Focus on EB-2 and EB-3 Degree Equivalency (AILA 2007).


bachelor’s. The foreign national would re-quire five years of progressive post-baccalaureate experience to qualify in the EB-2 classification.20

Medical Degree

The Texas Service Center has been denying I-140 second-preference petitions filed on behalf of Indian physicians (and others) who hold a foreign bachelor’s of medicine degree, finding that although such degree qualifies the physician for admittance to a U.S. resi-dency program, it is not equivalent to a U.S. advanced (M.D.) degree. Therefore, it is critical to be aware of service center trends when drafting the 9089 applica-tion.

Progressive Experience

Assuming that the alien meets the bachelor’s re-quirement, how should the ETA Form 9089 be filled out to ensure the probability of EB-2 classification? Since some of these fields do not allow the insertion of additional words, H.c.14 should include wording to the effect that “experience must be progressive.” In addi-tion, it is important that the alien demonstrates that he or she meets the progressive requirement in section J. This can be done, as appropriate, by listing the job du-ties in such a way that they reflect progression as the alien moves among employers. Or, if all the necessary experience is gained with only one employer, the job description should be drafted in a way that demon-strates job progression. Job progression may be shown in a variety of ways, such as an increasing scope of responsibility, assumption of supervisory duties, expo-sure to and use of more advanced technology, or pro-motions. If the alien has significantly different job du-ties with the same employer, this can be reflected by using more than one J.e.1 field, listing any and all dif-ferent job titles and descriptions, even though with the same employer.

It is important to note that in order to qualify as progressive experience, the experience must be gained after the bachelor’s degree.21

20 “AILA Liaison Committee Meeting at NSC, Q&As” (Apr. 12, 2007), published on AILA InfoNet at Doc. No. 07060161 (posted June 1, 2007). 21 8 CFR §204.5(k)(3)(i)(B).

Three-for-One Equivalencies

The H-1B regulation allows experience to be eval-uated in determining a bachelor’s equivalency by a formula of three years of experience to equal one year of missing education.22 Therefore, if a person does not have any education beyond high school, 12 years of appropriate experience could be evaluated to be equal to a four-year degree. There are two points that must be understood, however: (1) this regulation only applies to H-1Bs; and (2) only the adjudicating USCIS officer is designated to apply that formula.

Notwithstanding this, many employers and attor-neys try to apply this formula in the labor certifica-tion/I-140 context. On the ETA Form 9089, the re-quirement may be listed as “a degree or equivalent.” In H.c.14, equivalent may be defined as at least 12 years of related experience. But, such an “alternate” does not appear to be substantially equivalent, as is required by the regulations.23 A bachelor’s degree has an SVP val-ue of two years, while 12 years of experience has an SVP value of 12 years. It would appear that equating these two as “substantially equivalent” would strain credulity.

The authors are not in favor of using the three-for-one rule in a PERM context. Another, more reasonable, approach is an opinion from an expert evaluator that the person has the same knowledge, from experience, as someone who has attained a bachelor’s degree. Alt-hough this technique is extrapolated from an idea in the H-1B regulations, the principle can be worked into the PERM process. In this case, the equivalency relies on qualitative factors that are not quantitatively tied to a specific number of years. With this in mind, H.c.14 may be drafted to say “an applicant may qualify by presenting an evaluation stating that he or she has knowledge equivalent to a person with a bachelor’s degree in [field].” Because the evaluation is not based on specific years, there is less chance of a finding that the alternative requirements are “not substantially equivalent.”

Of course, the best way to deal with the problem of equivalency is to require a substantially equivalent number of years of experience, that is, by requiring a

22 8 CFR §214.2(h)(4)(iii)(D)(5). 23 20 CFR §656.17(h)(4)(i).


number of years of experience that equal, or are close to, the SVP of the primary requirement.24

Defining a Related Degree

The way to ensure that the alien’s degree will qual-ify is to have the alien’s specific degree listed in H.d.15b or H.e.20b. For example, an employer may state that the normal requirement is a bachelor’s degree in “biology or related.” Assuming the foreign national has a degree in microbiology and molecular genetics, the adjudicator must determine whether the microbiol-ogy and molecular genetics degree is “related” to biol-ogy. If the alien is currently working for the employer in the position being offered, then the employer must have determined that the degree in microbiology and molecular genetics is related, so the field of study will be better drafted as “biology, microbiology and molec-ular genetics, or related.” If so drafted, it takes the pos-sibility of a discretionary unfavorable decision out of the hands of the adjudicating officer, who may not de-termine that “microbiology and molecular genetics” is related to biology.

The Foreign National Must Meet the Requirements of ETA Form 9089 at the Time of Filing

It is well settled that the foreign national must meet all of the requirements as listed on ETA Form 9089 when the priority date is set. According to 8 CFR §204.5(d), the priority date is the date a labor certifica-tion is accepted for processing within DOL’s employ-ment service system. The foreign national must meet all of the requirements as of the priority date, even though the labor certification is being filed “for future employment.” For example, if the foreign national is residing outside of the United States, even though it may take a number of years before his or her priority date becomes current, it is not acceptable to claim that the foreign national will meet the requirements by the time he or she arrives in the United States to assume the position.

24 For example, H.c.14 could say, “Will accept two years of experience in lieu of a bachelor’s degree.” A bachelor’s de-gree has an SVP value of two years, which is the same SVP value of two years of work experience.

Anticipating a Promotion or Other Changes in the Job

The practitioner, before commencing a PERM case, should discuss with the employer and the foreign national whether there is a chance the worker may be promoted to a substantially different position before he or she will immigrate. The immigration process could take a lengthy period of time, depending on the prefer-ence and the country of birth. If that happens, the em-ployer may be required to file a new PERM case. If the foreign worker’s I-140 immigrant petition has been approved, he or she at least would be able to recapture the earlier case’s priority date25. Obviously, a refiling is something the foreign worker and employer would pre-fer avoiding. They only can do so if the foreign worker is not promoted or, if promoted, is able to demonstrate that the positions are not substantially different. For example, if the promotion involves only a salary in-crease, but the job duties and Standard Occupational Classification (SOC) code are the same, a new PERM application would be unnecessary.

If there is a likelihood of a promotion, this should be evaluated and, if feasible, a labor certification for the future position should be prepared and filed rather than one for the alien’s present position. Remember, the labor certification is for a “future” position, there-fore, filing a labor certification for a future, anticipated position is acceptable.26

EMPLOYER INFORMATION

While the ETA Form 9089 requests information about the employer, if there is no audit, the first time the employer must submit documentation (primarily the ability to pay the wage stated on the PERM form) is at the I-140 stage. Ability-to-pay documentation takes the form of annual reports, federal tax returns, or audit-

25 8 CFR §204.5(e). 26 There is an argument under section 106 of the American Competitiveness in the Twenty First Century Act (Pub. L. No. 106-313) that someone promoted to a job in the same or a similar occupational classification with the same employer may qualify for permanent portability following I-140 ap-proval and the passage of 180 days from I-485 filing. How-ever, the cases that would fall under this provision are lim-ited given the backlog of visa availability. Also, it is unclear from the statute whether this provision applies to a change in positions with the same employer or not.


ed financial statements. Other types of documentation may be submitted, as appropriate.27

The Form 9089 requests certain information about the employer, including:

1. The employer’s name (C.1.);

2. The employer’s address (C.3.);

3. The employer’s federal employer identification number (FEIN) (C.14.);

4. Any ownership interest by the alien or familial relationship with the employer. (C.16. and C.17).

There is a direct relationship between the facts as stated on the form and the documentation that will be submitted to USCIS in support of the I-140. Or, stated another way, what is stated on the form may have an influence on the acceptability and effectiveness of the I-140 and its supporting documentation. USCIS has denied I-140s when the information in the documenta-tion and the information on the forms is different, stat-ing that, by presenting conflicting information, the peti-tioner has not met its burden of proof.

Practice Tip: It is essential that the documentary evidence submitted with the I-140 petition directly support (match) the requirements listed.

Employer’s Name and FEIN

While the employer’s name and FEIN would ap-pear to be straightforward information, once the docu-mentation is gathered and analyzed by the attorney, many potential issues may appear, including:

1. The employer listed on the Form 9089 is operating under a doing-business-as (DBA) name and the fi-nancial documentation is under the name of the ac-tual legal entity.

2. The employer is a subsidiary of a corporation and there is no independent financial documentation under the subsidiary’s name.

3. The employer uses the services of a sister company or professional services company for HR and other employer services, and the employer’s FEIN may not be listed on its employees’ pay stubs.

27 Per 8 CFR §204.5(g), this documentation includes a state-ment from a financial officer in companies with 100 or more employees, profits/loss statements, bank account records, or personal records. It is important that this documentation comports with the employer information on the Form 9089.

Understanding that documentation from the em-ployer eventually will be required, either in response to a DOL audit or by USCIS to support the Form I-140, it is important to be sure that the information listed on the Form 9089 will be corroborated by this documentation.

For example, on Form 9089, C.1., the simple re-quest for the employer’s legal business name must be considered carefully. Who is the actual employer? What is the employer’s legal name? Under what name are tax returns filed, annual reports issued, and audited financial statements prepared? Any discrepancies be-tween the information on Form 9089 and the documen-tation submitted to USCIS is an invitation for a request for evidence (RFE), or even worse, a denial, if USCIS determines that the actual employer is not the “employ-er” who is listed on or filed the Form 9089.

Practice Tip: If possible, the “ability to pay” doc-umentation should be requested and obtained before the PERM application is filed. Reviewing this docu-mentation should reveal if there will be any issues re-garding who the employer is and the proper name to use.

Employer’s Address

Many companies have multiple locations. Some-times, the employer’s address at which the foreign na-tional will be employed is not the address of the head office or the office that prepares the forms. Identifying the correct address to use on the Form 9089 can be done by following the form’s accompanying instruc-tions.28 Using an address on the Form I-140 which is different from the address(es) on the Form 9089, unless it is adequately explained, can cause confusion and an RFE. It is best, therefore, to keep the addresses con-sistent, or to provide an explanation of any different addresses.

Signature

There is no requirement that the person who signs the Form 9089 also must sign the Form I-140. In fact, there are good reasons why different persons in the company may sign the two forms: an HR person may

28 The instructions that accompany section C.3 indicate that the address that should be entered is the employer’s principal place of business, which would normally be the address of the headquarters or main office. H.2 is the place to enter the address of the primary site or location at which the work will be performed. This may or may not be different from the address on C.3.


sign the Form 9089, since the form is primarily about the employment opportunity, while a financial officer may sign the Form I-140, since it emphasizes the abil-ity of the employer to pay the salary offered on the Form 9089.

The authors suggest, as much as practical, that the same person sign both forms. If that is not possible or convenient, the reason for a second person signing at the I-140 stage should be explained, to head off any puzzlement or confusion and the potential issuance of an RFE.

THE IMPORTANCE OF JOB TITLES IN EB-2 AND EB-3 CASES

To qualify as a professional under EB-2 (member of the professions holding an advanced degree or equivalent) and EB-3 (member of the professions hold-ing a bachelor’s degree), USCIS looks at the job duties and requirements to determine if the foreign national is qualified.

“Profession” is defined as one of the occupations listed in INA §101(a)(32)29 or any occupation for which a bachelor’s degree is the minimum requirement for entry.30

Many occupations are well known and not open to controversy about whether they are professional or not. However, some occupations are not so clearly estab-lished as professional, such as many in design (interior, graphic, fabric, etc.), visual arts, (photographers, vide-ographers, animators), and several positions in the in-formation technology field. It is important to draft the job duties and job requirements on Form 9089 in such a way as to demonstrate a professional position.

It is also important, when possible, to draft a job ti-tle that will reinforce the concept that the position is a professional one. For example, an employer may call a position “accountant associate,” or “junior interior de-signer.” These titles cause ambiguity as to the profes-sional level of the position. If the job duties also are described ambiguously, there may be serious questions as to whether the foreign national will receive the pro-fessional classification. Therefore, it is strongly sug-gested that, when possible, the professional occupa-tion’s title be used on the Form 9089 at H.c.11 or that

29 Architects, engineers, lawyers, physicians, surgeons, and teachers (elementary schools and up). 30 8 CFR §204.5(k)(2), (l)(2).

language, such as “Accountant” (internally called “ac-countant associate”) be inserted in this item.

It is also important when obtaining a prevailing wage to have the state workforce agency (SWA) classi-fy the position as a professional occupation. Such a classification may be helpful to USCIS in classifying the position as a professional. For example, in some small schools, a teacher may teach early childhood classes, which may range from teaching 4-year-olds to third graders. Typically, 4-year olds are classified as preschool, while third graders are elementary students. “Preschool teacher” is a classification not normally given “professional” status. On the other hand, “ele-mentary school teacher” is normally classified as a pro-fessional position. Therefore, if the F.531 occupational title is “preschool teacher,” notwithstanding that the title at H.c.11. is “elementary school” and the job du-ties at H.c.13. appear to be those of an elementary school teacher, the conflict may be resolved by USCIS in favor of the SWA determination.

CHANGING WORKSITE LOCATIONS

The Employer Moves

With PERM applications being processed relative-ly fast (a matter of months after filing, rather than years under the old system), and with the fact that an I-140 now must be filed within 180 days after PERM ap-proval, the chances that an employer may change ad-dresses between the filing of the ETA Form 9089 and the Form I-140 have diminished greatly. However, such changes still occur and can create potential prob-lems unless this factor is addressed.

If the change of address is anticipated before filing the Form 9089, this new address can be reflected on the form. If that is done, no explanation will be necessary at the I-140 stage. However, immigration attorneys are often the last to know of such changes. If a move has occurred and the employer’s address becomes different than the address on the ETA 9089, the I-140 should, of course, reflect the new address.

Practice Tip: Rather than waiting to see if USCIS will notice and send an RFE, the attorney should ex-plain the change of address proactively and point out that the labor certification is still valid because the new address is in the area of intended employment, assum-ing that is the case. In other words, it should be pointed

31 Section F.5 asks for the standard occupational classifica-tion (SOC) occupational employment statistics (OES) code.


out that the job location is in the same metropolitan statistical area (MSA) or primary metropolitan statisti-cal area (PMSA) or within normal commuting distance. Referring to the PERM regulation also will be help-ful.32

The Employee’s Worksite Location Changes

There are at least two situations in which an em-ployee may change worksite locations: (1) when there is a transfer by the employer; or (2) when the employee is a “roving” employee and it is anticipated that, over the course of employment, the foreign national will be assigned to various locations.

The practitioner, before commencing a PERM case, should discuss with the employer whether there is a chance the foreign national will be relocated to a dif-ferent labor market which would necessitate a future refiling. The PERM process is intended to test the labor market to determine whether there are U.S. workers who are qualified, willing, and able to take the position offered to the foreign worker at the prevailing wage for that occupation in the “area of intended employment” and that employment of the foreign worker will not affect the wages and conditions of similarly employed U.S. workers.33

As a result, an unanticipated change in the location of the foreign worker’s position can be fatal to the ul-timate success of the PERM application. If the new location is the same area of the intended employment as that listed in the PERM application, or, if the em-ployer had wisely anticipated that the foreign worker might be transferred to such new location and had ad-vertised and filed accordingly, the employer would not have to refile.

When a foreign national is reassigned by the em-ployer, if such a change was not anticipated, and a la-bor certification was not drafted appropriately, there may be little that can be done other than to file a new labor certification. Of course, a labor certification is only valid in the place of intended employment, where the labor market was tested. Therefore, moving outside of the labor market to an area that has not been tested by PERM recruitment will invalidate the applicability of the labor certification. For this reason, it is important to confer with the foreign national and the employer in

32 The DOL definition of “area of intended employment” is found at 20 CFR §656.3. 33 20 CFR §656.1(a).

regard to any pending or potential transfer of the em-ployee to another area.

Roving Employees

A roving employee is one who transfers frequently or infrequently among various employer worksites, client sites, etc. Generally, the nature of the employee’s duties necessitates those site transfers. The fact of a roving employee was cumbersome to note on the old Form 9089. Such terms as “various worksites” or “fu-ture worksites undetermined” in H.1 or H.14 of the old form was the best way to deal with roving employees. The current Form 9089 has been drafted in such a way that the locations of a roving employee are easier to list. Section H.a.1.d allows the employer to check that the work will be performed at no one specific worksite address or physical location. Section H.a.8 goes further and allows the employer to indicate whether the work will be performed at addresses other than the worksite address. Section H.b.1. allows the employer to list up to five MSAs where the employment is expected to be performed. However, if the roving employee will be in more than five MSAs or in presently unknown MSAs, H.b.2.10 can be completed. There is space for a narra-tive description of the geographic areas where work would be performed. Noting such changes of worksites on the Form 9089 should prevent problems at the I-140 stage.

However, if multiple locations were not mentioned on the Form 9089 or cannot be inferred from the lan-guage on that form, the I-140 may not be approved.

PREVAILING WAGE/ABILITY TO PAY

One of the issues that should not be overlooked is whether the employer has the ability to pay the foreign national 100 percent of the prevailing wage as deter-mined by the SWA. The employer must demonstrate the ability to pay the prevailing wage from the time the priority date is established, that being the date the PERM labor certification application is filed, and con-tinuing until the beneficiary obtains lawful permanent resident status.34

Practice Tip: It is important to review and evaluate the financial documentation and begin documenting the employer’s ability to pay at the onset of the case by collecting the foreign national’s W-2s and pay stubs, and the employer’s tax returns, etc.

34 8 CFR §204.5(g)(2).


Although the employer is not required to pay the proffered wage at the filing of the labor certification, it is certainly helpful in proving ability to pay if the em-ployer is already paying that wage.

Longstanding AAO decisions hold that as long as the employer has paid the proffered wage since the time the priority date was established, the case should not be denied for lack of financial ability to pay the proffered wage.35 Moreover, in light of a May 4, 2004, USCIS memorandum,36 a W-2 indicating the employer has paid and is currently paying the prevailing wage is strong evidence that the employer has the ability to pay the prevailing wage.

If the employer has not paid 100 percent of the prevailing wage since the date of filing the labor certi-fication, the attorney should look to the employer’s tax returns, audited financial statements, or, for publicly traded corporations, annual reports to support the ar-gument that the employer has the capability to pay the full prevailing wage. If none of these financial docu-ments demonstrates that the employer has net income or net current assets exceeding the proffered wage37, the employer may use other alternative approaches in an attempt to convince USCIS that the employer in fact has the ability to pay. Some of these approaches in-clude:

Review the employer’s receivable accounts. Federal tax returns are prepared on a cash-basis system that only considers monies ac-tually received and taken into the business. This means that accounts receivable, which are monies not yet collected but are owed to the business, are not reflected on the federal tax return. Accounts receivable are deemed an “asset” of a business and may be used as evidence that the petitioner’s net current as-sets satisfy the ability to pay.

Review the employer’s bank accounts. The AAO has held in unpublished decisions that a bank balance alone is not sufficient to demonstrate ability to pay; however, if the employer has sufficient funds in its bank ac-

35 E.g., Matter of Quintero-Martinez, A29 928 323 (AAO Aug. 4, 1992). 36 USCIS Memorandum, W. Yates, “Determination of Abil-ity to Pay Under 8 CFR §204.5(g)(2)” (May 4, 2004), pub-lished on AILA InfoNet at Doc. No. 04051262 (posted May 12, 2004). 37 Id.

counts to pay the foreign national’s full sal-ary, and the employer has a reasonable ex-pectation of increasing profits in the future, this may satisfy the ability-to-pay require-ment under the “Sonegowa exception.”38

38 Matter of Sonegawa, 12 I&N Dec. 612 (AAO 1967). “[U]nder Matter of Sonegawa, USCIS may consider the overall financial situation of the petitioner.” R. Wada, “Demonstrating an Employer’s Ability to Pay,” 8 Bender’s Immigr. Bull. 1559 (Oct. 1, 2003).


If the employer is a sole proprietorship or general partnership, the assets of the sole proprietor or general partners may be taken into account in evaluating the employer’s ability to pay.39

If the employer is an unincorporated divi-sion or branch office of an entity, the assets for the entire entity may be included in the pool of assets upon which the employer could draw to pay the offered salary.

In any event, it is advisable to address the ability to pay issues at the onset of the PERM case and prepare the documentation at that time, even though it may not be filed until the I-140 petition stage.

CONCLUSION

As can be seen, there are numerous factors that must be considered in the preparation of the ETA Form 9089 in order to ensure that a Form I-140 will be ap-proved. Therefore, the astute practitioner must keep two things in mind when drafting the Form 9089: (1) maximizing the chances of an approved labor certifica-tion; and (2) maximizing the chances of approval of the I-140.

39 In such cases, USCIS has asked, in requests for evidence, for the employer’s complete federal income tax returns with schedules and attachments, a list of the employer’s monthly recurring household expenses, including mortgage payment, installment loans, credit card payments and household ex-penses (gas, heat, electric, phone, cable, etc.), and, of course and if available, the beneficiary’s W-2s or Forms 1099 for all years of employment.


In December 2004, when the U.S. Department of Labor (DOL) first announced the institution of the new Program Electronic Review Management (PERM) System, the immigration bar was thrust into a state of uncertainty; no one knew what to expect from a system promising expedited processing through formulaic requirements. Fast forward to several years later and the immigration bar now has a much better idea of the peculiarities and workings of PERM and has, in some cases, enjoyed the prom-ised benefit of faster processing times. Nonetheless, while the initial concerns about PERM have some-what abated they, as discussed in other articles in this manual, have been replaced with other equally pressing questions. What remains unchanged, how-ever, is the continued and very basic need for attor-neys, at the very outset, to: (1) identify all employer-related and alien-related issues that determine

* Wendy Castor Hess is a partner in the Immigration law firm of Goldblum & Hess. She is chair of the Philadelphia Bar As-sociation’s Immigration Committee, co-vice chair of the Penn-sylvania Bar Association’s Immigration Committee and co-chair of the Philadelphia AILA USCIS Liaison Committee. A frequent national speaker on business immigration law issues in both English and Spanish, Ms. Hess is a former attorney with the U.S. Department of Justice, Board of Immigration Appeals and a past member of the AILA DOL Liaison Com-mittee. She is listed in Best (Immigration) Lawyers in America and the International Who’s Who of Corporate Immigration Attorneys. Jonathan A. Grode is a senior associate at Goldblum &

Hess. Jonathan graduated from Temple University’s James E. Beasley School of Law (magna cum laude and Albert J. Bricklin Memorial Award winner–2008), where he currently serves as an adjunct professor of Law. In addition, Mr. Grode holds leadership positions with AILA on a local level as well as the ABA’s Labor and Employment Law section. Mr. Grode has worked continuously in the business immigra-tion law field since graduating magna cum laude from Case Western Reserve University in 1999. Maria P. Fritzinger is an associate at Goldblum & Hess,

where her current practice concentrates on employment-based immigration, including immigrant visas for university faculty. Prior to joining Goldblum & Hess, Maria participat-ed in Temple University’s Immigration Clinic at Nationali-ties Service Center in Philadelphia, where she represented low-income immigrants on a pro bono basis.

whether a PERM case can (or should be) com-menced; (2) explain to the employer, with great clar-ity, that the PERM case is the employer’s case so that the employer, in turn, may fully understand and accept the responsibilities connected with the PERM process; and (3) explain to the employer any and all liabilities, including criminal, that the em-ployer may incur by engaging in sponsorship of a foreign worker. This article is divided into three sec-tions and focuses exclusively on the critical em-ployer-related issues that should be identified before the practitioner accepts or commences a PERM case.

Section I discusses the two-fold importance of utilizing a comprehensive Employer Questionnaire. The Employer Questionnaire should contain the in-formation elicited in all forms connected with the PERM application as well as those ultimately need-ed in connection with the I-140 Immigrant Petition for Alien Worker (I-140 petition) in order to assist the practitioner in completing such forms and devis-ing an overarching strategy for obtaining permanent resident status on behalf of the sponsored foreign national. Of greater importance, the Employer Ques-tionnaire should help the practitioner assess the strengths and weaknesses of the PERM application (and subsequent I-140 petition) by identifying issues or “red flags” so that the practitioner, if possible, can skillfully and effectively deflect the same; or, if that is not possible, to advise the employer that the case should not be commenced.

Section II discusses the importance of educating the employer about the PERM process and, appris-ing the employer of its legal and ethical responsibili-ties before commencing a case. This section sets forth those responsibilities in great detail.

Lastly, Section III addresses the increasingly important issue of employer liability, including po-tential criminal liabilities that may arise as a result of sponsoring an undocumented foreign worker for the PERM process.

EMPLOYER-RELATED ISSUES TO SPOT BEFORE COMMENCING A PERM CASE

by Wendy Castor Hess, Jonathan A. Grode, and Maria P. Fritzinger*


SECTION I: INFORMATION THE PRACTITIONER NEEDS TO KNOW ABOUT

THE EMPLOYER—IDENTIFYING ADVANTAGES AND DISCOVERING

POTENTIAL PITFALLS

The key to a successful lawful permanent resi-dence case, from the filing of the prevailing wage request to the approval of the I-140 Immigrant Peti-tion for Alien Worker and the final approval of the I-485 Application to Adjust Status, begins with the Employer Questionnaire.1 To achieve this ultimate goal, the practitioner’s Employer Questionnaire should carefully track the information required for the prevailing wage determination (PWD) request (ETA Form 91412); the PERM application (ETA Form 90893—especially the sections referring to the wage offer (Section G) and the job opportunity (Section H)); and the I-140 petition.4 By organizing the Questionnaire in such a manner, the practitioner will be able to quickly identify critical information needed to determine approvability of the PERM ap-plication, such as hard-to-find and necessary skills which will assist in making PERM certification more likely.

Additionally, and perhaps more importantly, a thorough Employer Questionnaire will allow the practitioner to detect potential pitfalls that may be lurking, such as the weak financial resources of the employer or a familial relationship between the em-ployer and the foreign worker. Identifying issues

1 The Employer Questionnaire is an internal document utilized by a law firm to elicit relevant information for the application or petition being filed on behalf of the foreign worker. 2 As of January 1, 2010, all requests for prevailing wage de-terminations (PWDs) must be submitted through the National Prevailing Wage Center (as opposed to the various state work-force agencies). Access the iCert Portal for more information in this regard and to view and submit ETA Form 9141: http://icert.doleta.gov/. 3 The PERM application must be submitted electronically through the Department of Labor’s (DOL) Employment and Training Administration (ETA) website. Access the ETA’s electronic PERM submission website for more information in this regard: www.plc.doleta.gov. Practitioners must have a user ID and password to log in. To view a printable version of ETA Form 9089 without logging in, access DOL’s For-eign Labor Certification Forms website: www.foreignlabor cert.doleta.gov/pdf/9089form.pdf. 4 The I-140 petition can be accessed via the U.S. Citizenship and Immigration Service (USCIS) website by clicking on the Forms tab: www.uscis.gov.

that may preclude approval and thus result in a rec-ommendation not to commence a case is the respon-sibility of a prudent and ethical practitioner. Clearly, as with most pursuits of immigration benefits, knowing and preparing for what potentially lies ahead is the foundation for a successful PERM ap-plication and satisfied clients.

An example of an Employer Questionnaire that tracks the information required for completion of the PERM application and the I-140 petition is included as Appendix A to this article. Rather than discuss every nuance of the sample Employer Questionnaire, this article will focus on those important employer-related issues that could generate an audit of the PERM application by the Department of Labor’s (DOL) Atlanta Processing Center or, worse, a denial of the PERM application or subsequent I-140 peti-tion.

Issues Associated with the Timing of the Filing of a PERM Application

Employers must pay careful attention to the tim-ing of the PERM application for a multitude of rea-sons, the most important of which is the foreign worker’s ability to continue to be employed by the employer while awaiting receipt of lawful perma-nent resident status. Specifically, due to the six-year limit on a foreign worker’s H-1B visa or the five/seven-year limit on a foreign worker’s L visa, a well-timed PERM application is essential to that foreign worker’s ability to maintain work authoriza-tion and employment with the employer beyond the expiration of his or her nonimmigrant status. In ad-dition, promptly starting the PERM process may save the employer significant costs related to re-advertising.

Using the PERM application as a retention tool

An employer that has hired a foreign worker should be encouraged to begin the PERM process on the earliest possible date. Starting the PERM process early often is an important retention tool for the employer and will certainly boost the foreign worker’s morale. After all, foreign workers who are subject to the employment-based third preference (EB-3) classification and foreign nationals (from China and India) who are subject to the employ-ment-based second preference (EB-2) classification face a long wait before they are eligible to apply for


permanent residence. Thus they are anxious to cap-ture a “Priority Date” as soon as possible.5 No mat-ter who the foreign worker is, or what country he or she is from, almost all are worried and anxious about their ultimate ability to remain in the United States in a secure status. For this reason, foreign workers will often leave an employer who is lax about starting the PERM process. By contrast, they will likely stay with an employer who understands the importance of beginning the PERM process ear-ly and acts accordingly. Of course, the impetus to start a PERM case must be balanced against an em-ployer’s need to ensure that it has, indeed, hired a strong worker deserving of such effort. Explaining and helping employers to understand and balance these two aspects of PERM and the “green card” process is an essential and much-needed service that practitioners can offer to an employer.

Beginning the PERM process early may save the employer significant costs

If the employer, during the past six months, has engaged in real-life recruitment, it may be possible to use all or some of the recruitment to support the PERM application the employer intends to file.6 This will save the employer the costs of having to re-advertise in order to support a PERM application.

5 The importance of the foreign worker’s employment-based (EB) classification becomes relevant at the last stage of the green card process, which is the filing of Form I-485, Appli-cation for Adjustment of Status. The I-485 application can-not be filed until the foreign worker’s “priority date” (in most cases, this is the date the PERM application was filed) is “current,” signifying that a visa number is immediately available. See 8 CFR §245.1(g). However, nationals of China and India are often subject to employment-based “visa una-vailability” or “visa retrogression,” which has created lengthy and frustrating backlogs in the green card process. The backlogs vary depending on the foreign worker’s na-tionality and on which employment-based category he or she falls into. For example, as of Oct. 2011, the Visa Bulletin reveals that the priority date for nationals from China and India in the EB-2 category (applicable to advance-degreed foreign workers pursuing employment in a position requiring same ) had each retrogressed to July 15, 2007. However, the scenario in the EB-3 category (applicable to foreign workers with at least two years of experience as skilled workers, pro-fessionals with a bachelor’s degree) is far worse. In fact, the October 2011 Visa Bulletin indicates that visa numbers for the EB-3 preference category have retrogressed to December 8, 2005 (for the all chargeability class)! 6 20 CFR §§656.17(e)(1)(i) and (e)(2).

Practice Pointer: If a practitioner has a long-standing relationship with an employer, the practi-tioner should advise the employer to always recruit in sources that meet the advertising requirements of the PERM process and to be sure that all ads con-form to the required PERM format. This is done with the hope that some of this recruitment can be used to support a PERM application should the em-ployer ultimately hire a foreign worker.

In some very rare circumstances, PERM can be used as a means of obviating the need for nonimmi-grant visa sponsorship (including H-1B classifica-tion, which has become increasingly expensive). For, example, students in F visa status are generally eligible for 12 months of post-graduation Optional Practical Training (OPT).7 As a result of a recent change in the law, F visa students who are studying in the fields of science, technology, engineering, or math (STEM fields) may be eligible for up to 29 months of post-graduation OPT.8 This relatively new development may allow the employer sufficient time to file the PERM application (especially for those with advanced degrees (EB-2) who are not from India or China) as well as the application for adjustment of status without the need to obtain H-1B status. This, of course, is provided that the em-ployee does not need to travel outside of the United States (which will prevent him or her from having to make any statements to Department of State (DOS) or U.S. Customs and Border Protection (CBP) offi-cials misrepresenting his or her now-changed nonimmigrant intent, which is necessary to maintain valid F-1 status). Note, however, that most foreign nationals prefer holding H-1B visa status rather than F-1 status visa in order to facilitate emergent inter-national travel. This is due to the ability to secure dual-intent H-1B visas more readily from U.S. con-sulates. For this reason alone, the above suggestion is more aspirational than actual in practice.

7 8 CFR §214.2(f)(10). 8 To be eligible for the additional 17-month Optional Practical Training (OPT) extension, the employer, among other require-ments, must be registered for the E-Verify Program and the stu-dent must have received a degree in a science, technology, en-gineering, or math (STEM) field of study. A list of acceptable degrees/fields of study can be found on the U.S. Immigration and Customs Enforcement (ICE) website at www.ice.gov/ se-vis/stemlist.htm. 73 Fed. Reg. 18944–56 (Apr. 8, 2008).


A timely filed PERM application will secure the foreign worker’s ability to maintain work authorization until permanent resident status is granted

Employers that have successfully pursued the PERM process will additionally benefit by being able to obtain H-1B extensions for their foreign workers beyond the normal six-year limit until they are eligible to apply for permanent residence. Ideal-ly, the PERM application should be filed well before the foreign worker reaches the sixth year of H-1B sta-tus and no later than the beginning of the fifth year.9 If, at the time the foreign worker reaches the sixth year he or she has had a PERM application or I-140 peti-tion filed for more than 365 days, the worker is per-mitted to extend his or her H-1B status in one-year increments (American Competitiveness in the 21st Century Act (AC21) §106(a)). If the worker has an approved I-140 petition, but is ineligible to adjust status based on visa retrogression, then his or her H-1B status can be extended in three-year increments until he or she is eligible to file for adjustment of sta-tus (AC21 §104(c)).10 Thus, practitioners must stress to employers the importance of starting the PERM process for any foreign worker they may wish to employ on a permanent basis as soon as possible, but optimally, well before the foreign worker reach-es the sixth year of H-1B status. Doing so will help avoid situations involving dismayed employers whose foreign workers will need to leave the country (and their job) because they are unable to extend their H-1B status due to poor planning.11

9 8 CFR §214.2(h)(13)(iii)(A)—“An H-1B alien in a special-ty occupation … who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15)(H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.” 10 American Competitiveness in the 21st Century Act (AC21), Pub. L. No. 106-313, 114 Stat. 1251. 11 Please note that these provisions do not apply to any other visa category, including L, E, and O visa classification. Therefore, many practitioners will advise their clients to convert their workers to H-1B status if PERM is required in order to obtain permanent resident status.

Issues Associated with the Employer’s Corporate Information

The employer is responsible for registering its company with DOL for both the posting of the man-datory State Work Force Agency (SWA) Job Order and the electronic filing of the PERM application.12 It is thus imperative that the practitioner elicit the cor-porate information that is required for registration from the employer at the very outset to ensure its ac-curacy as well as to identify any issues that may arise from this seemingly standardized information.

Issue: The employer’s legal name and doing business as (D/B/A) name

The Employer Questionnaire should elicit the employer’s legal name and, if applicable, its “doing business as” name, and, if the employer has various entities, which entity will be acting as the sponsor. As stated above, the first step of the PERM process is to ask the employer to register with DOL online so that it can obtain a PIN number which is required to ultimately file PERM applications. The PERM form mandates the use of the employer’s full legal name. This requirement can be problematic, as some employers, when registering the company with DOL online, accidentally use their D/B/A name. The practitioner should ensure that the correct entity name is used to avoid an audit or, worse, a denial for failure to correctly cite the name of the employ-er.

In addition, many employers, especially hospi-tals, have distinct and different corporate entities, such as one entity for a physician services group and another for direct hospital employees, each with a separate Federal Employment Identification Number (FEIN). The practitioner should be certain to ascer-tain at the very beginning which entity will be serv-ing as the sponsoring employer.

Finally, if an employer has changed any of its business locations since first registering for its FEIN, the employer must ensure that the corre-sponding Internal Revenue Service (IRS) filings re-flect this change. Otherwise, the PERM process could be delayed, as DOL will not issue the elec-tronic filing PIN number to the employer until such incongruence is rectified. These issues surrounding an employer’s name may appear simple, but if there

12 20 CFR §656.17(a)(2).


is a short deadline for getting everything done, then even small mistakes can have significant negative consequences.

Issue: Close familial relationships and foreign worker ownership

The Employer Questionnaire should elicit whether there is a familial relationship between the foreign worker and the employer and, if a closely held corporation or partnership, whether the foreign worker possesses an ownership interest.13 When information of this nature is elicited through the Employer Questionnaire, an immediate red flag is raised and bells should go off. Not only are cases of this nature heavily scrutinized through an automatic audit, but they also require significant additional documentation, planning, and preparation to maxim-ize the chance of success. The practitioner should not only be prepared for a PERM process that could take well in excess of a year (based on current audit processing times) instead of the usual four to six months, but should also anticipate charging addi-tional legal fees to cover the need to procure corpo-rate ownership and financial documentation re-quired for the ensuing audit, as well as, of course, to cover the time involved in preparing a brief in re-sponse to the expected audit.14

Issue: Employer’s number of employees.

The Employer Questionnaire should elicit the employer’s total number of employees. When the PERM process started, an employer with less than 10 full time employees was believed to be an auto-matic audit trigger similar to the requirements dis-cussed immediately above regarding close familial relationship and alien ownership.15 In fact, the PERM regulations state that if the “alien is one of 10 or fewer employees, the employer must docu-ment any family relationship between the employees and the alien.”16 However, it does not appear that such blanket auditing and additional scrutiny in the

13 20 CFR §656.17(l). 14 For more information regarding how best to prepare a PERM application where the foreign worker either shares a familial relationship with the employer or holds an owner-ship interest in the sponsoring entity, please refer to the arti-cle by Allen E. Kaye elsewhere in this Guide entitled, “Alien Influence and Control Over the Job Opportunity.” 15 See 20 CFR §656.17(l)(5). 16 Id.

certification process has materialized. Still, a practi-tioner representing an employer with less than 10 employees should be wary when the Employer Questionnaire reveals that the sponsoring entity is small in scope. The practitioner should recognize that, based on this fact alone, an audit is possible and should prepare adequately and plan according-ly.17

Issues Associated with the Employer’s Worksite Location: Multiple Worksites, Roving Employees, and Virtual/Home Offices

The Employer Questionnaire should ask for all worksites where the worker will or may, in the near future, work—including the street address, town and county of all work locations. An issue that arises with the PERM process is trying to obtain certification for employment opportunities that do not lie within one specific geographic location or employment opportu-nities predicated on virtual offices and telecommut-ing. Because the PERM process is centered on the effect a foreign worker permanently entering the United States job market has on a particular geo-graphic region,18 if the Employer Questionnaire re-veals what DOL would consider to be a non-traditional employment arrangement, the practitioner should proceed cautiously.

As a result, it is more important than ever that the practitioner understand the work location(s) and work agreements associated with the position for which labor certification is sought and acquire doc-umentary evidence demonstrating the business ne-cessity driving such an employment arrangement.19

Practice Pointer: Notwithstanding the fact that the PERM application does not incorporate em-ployment arrangements where a foreign worker may work at multiple worksites, and despite the statutory requirement that the prevailing wage must be paid per Metropolitan Statistical Area (MSA),20 the

17 For more information regarding the PERM process for smaller entities, please refer to the article by Allen E. Kaye, elsewhere in this Guide entitled, “Alien Influence and Con-trol Over the Job Opportunity.” 18 20 CFR §656.2(c)(1)(i). 19 For more information regarding how to complete this sec-tion of the new PERM application, please refer to the article by Steven Clark elsewhere in this Guide entitled, “Anatomy of ETA Form 9089: An Item-by-Item Dissection.” 20 20 CFR §656.40.


PERM application only asks, at Section F, for one prevailing wage determination. However, the pre-vailing wage determination request form (ETA Form 9141) requests in Section D, Job Offer Infor-mation; Subsection c, Place of Employment Infor-mation; Question 7, whether or not the work will be performed at multiple worksites within the area of intended employment; and, at Question 7a, for a list of the location(s) of such anticipated worksites. The National Prevailing Wage Center (NPWC) will is-sue a prevailing wage determination based on the highest prevailing wage of all listed worksites. Such prevailing wage determination must be inserted in Section F of the PERM application. For this reason, it is important that the practitioner determine all known worksites and advise the employer of the potential prevailing wage changes based on such worksites.21

Practice Pointer: If an employee is to be as-signed to various unknown worksites around the country, the prevailing wage determination (and re-cruitment effort), will be based on the location of the company’s headquarters.22

Practice Pointer: In the event of a change in the location of a worksite, the PERM process may have to be started anew. However, pursuant to AC21 §106(c), if the resulting I-140 immigrant petition has been approved and the corresponding I-485 applica-tion has been pending for more than 180 days, the foreign worker can “port” to a new worksite loca-tion without having to file another PERM applica-tion, as long as the job is the “same or similar” to the certified position.23

Issues Associated with the Wage Offered

The Employer Questionnaire should ask if the foreign worker is currently employed by the em-ployer; what the employer is paying or is willing to pay for the offered position, and whether its current

21 For more in-depth information regarding the prevailing wage determination process, please refer to the article by Ester Greenfield and Linda Rose elsewhere in this Guide entitled, “Prevailing Wages Under PERM: How to ‘Do the Right Thing.’” 22 Minutes from DOL Stakeholders Meeting, Item 18 (Mar. 15, 2007), published on AILA InfoNet at Doc. No. 07041264 (posted Apr. 12, 2007). 23 See American Competitiveness in the 21st Century Act (AC21), Pub. L. No. 106-313, 114 Stat. 1251.

financial documents (which must be submitted in support of the subsequent I-140 petition) will estab-lish the employer’s ability to pay the determined prevailing wage. The practitioner, as suggested be-low, should be aware that wage issues often arise with cash businesses (and businesses dealing with a stagnant economy) and, thus, should be especially vigilant when asked to pursue a PERM case for such employers. In some instances, the practitioner, based on an evaluation of the employer’s financial situa-tion, will determine that a PERM case cannot be successfully pursued by the employer.

The employer must be willing to offer the for-eign worker a wage that is at least 100 percent of the prevailing wage for the MSA where the employment will occur, as determined through the prevailing wage request process. 24 The employer also must be able to prove its financial ability to pay the wage iss

drafting pplications to ensure i-140 pproval by edward r. litwin and marcine a. seid · 2013. 11....

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