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Who can file under 2nd preference employment based category?

Petersburg, VA |

Can an employer of a foreign worker petition the latter under EB2 under this situation?: the foreign worker is a member of the professions holding advanced degrees but her/ his job does not require those qualifications. For example, a school (K-12)wants to sponsor a foreign worker for permanent residency, the employee has advanced degrees but his/her position is a regular classroom teacher,can the school file the petition through EB2?

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Attorney answers 2


To successfully file an EB2 petition in this instance, the school will need to demonstrate that there is a "business necessity" for the above normal requirements for the offer of employment. To do this, the school will have to demonstrate that the job duties and requirements for the position bear a reasonable relationship to the occupation in the context of the school's business and are essential to perform the job in a reasonable manner. The key legal standards for business necessity can be found at 20 CFR § 656.17(h) and Matter of Information Industries, Inc., 88-INA-82 (1989).


In order to have a successful EB2 application for labor certification, the position must objectively (according to the Department of Labor) require either at least a Master's Degree or alternatively a Bachelor's degree plus 5 years experience. Not only that, the employer must be willing and able to pay the foreign national the applicable rate of pay for a person at that level.

Many times clients (employers and candidate employees) are tempted to increase the requirements of the position and the pay artificially. I believe it would be very difficult to prove that your employer needs this teacher to have a Masters degree or a BS plus 5 years experience for a classroom teacher. Those requirements are more typical for administrators. Your approach is a race to failure. Best to proceed with the conservative route to success.

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