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EB2 Category PERM - Can an employer require MS+1 year of experience without stating an alternate requirement?

Silver Spring, MD |

Will the employer have to prove later that MS+1 year = BS +5 (since DOL sees MS+3=BS+5 years) if the alternate requirement with a bachelors was not included to begin with?

Attorney Answers 4

  1. It depends on the position. Generally speaking, if it's a Zone 5 job, MS +1 yr exp should be ok. If it's not a Zone 5 job, then this would probably exceed the acceptable SVP range and would likely trigger an audit. In that case the company would need to show business necessity. If there is no alternative requirement, then you don't have to worry about whether or not it is equivalent to BS+5 yrs. You just need to worry about whether or not MS + 1 yrs is acceptable for the proffered position. This is the most important part which will affect the rest of the process. So I'd strongly recommend that the company consult a lawyer.

    The statement above does not create an attorney-client relationship. It is intended as general information only and it is not a substitute for legal advice. You should consult with a licensed attorney to discuss the specific facts and circumstances of your case.

  2. An employer is not required to have an alternate requirement. If the job requires an MS plus one year of experience, that's it. The DOL doesn't compare it to any hypothetical alternate requirement if the employer doesn't have one.

  3. Yes. It all depends on what DOL considers as being "normal" to the occupation, according to the SVP and O*Net. Alternate requirements are only listed by them employer when the foreign national beneficiary does not possess the type of degree or experience required for the job.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

  4. Yes, MS+1 is very commonly filed for tech workers. Dont need to list an alternate requirement.

    Business Immigration Attorney. For H, L, J, EB5s, PERM and EB1/2/3 Petitions. Call 800-688-7892 or visit Law Office of Anu Gupta. The advice suggested here is for general information only and not to be construed as legal advice.

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