How to Determine Whether a PERM Labor Certification Green Card Case Falls Under the EB-2 or EB-3 Pre
One of the most common inquiries I receive is how to determine whether an employment-based green card case falls under the EB-2 or EB-3 preference category. In general, an EB-2 or EB-3 case will be as follows: EB-2 Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected. EB-3 Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training. A green card process may qualify for the EB-2 preference category if the position minimally requires a Master’s degree or a Bachelor’s degree and 5 years experience. There are three steps of review when determining whether a case may fall under the EB-2 preference category. First, we must review the employer’s minimum requirements for the position offered. If the employer’s minimum requirements are not EB-2 level, it is improper to list higher EB-2 level requirements for a PERM process. If the employer’s minimum requirements are at an EB-2 level (Master’s degree or Bachelor's degree and at least 5 years), then the second step of review is the foreign national’s credentials. It must be confirmed that the foreign national meets the EB-2 level requirements based on education and/or prior experience gained prior to joining the company sponsoring him. The general rule is that the individual cannot prove that he meets the experience requirements of the ad through any experience gained with the same company sponsoring him. For example, if a position required a Bachelor’s degree and 5 years experience, the foreign national would need to prove 5 years experience in those duties prior to joining the sponsoring company in the U.S. *** One exception to that rule is that you are allowed to use experience gained with the same company as long as we can show that the prior experience with the same company is at least 50% different than permanent position offer. If the prior position is at least 50% different than the proposed permanent position, you may be able to use that experience gained with the same company that is sponsoring the green card process. It can be a difficult process to proceed under this exception, but it is feasible and we have successfully handled these types of cases. *** Another caveat to this rule is that you may use experience gained with a foreign location of the company or a different division that has a different FEIN. Lastly, if the position minimally requires EB-2 level requirements and the foreign national meets those requirements, the third step is to finally look at the DOL and what they list as normal requirements for the position offered. In some cases, if you require a Bachelor’s degree and at least five years experience, that could be viewed by the DOL as higher than what they think is normal and could trigger a business necessity audit. You would be required to provide the business necessity reason(s) as to why the company is listing requirements higher than what the DOL thinks is normal.
Andrew M. Wilson, Esq.