PERM Labor Certification: Indicating Alternate Degree/Experience Requirements on Form ETA 9089

Great tip from AILA about how alternate degree and experience requirements are stated on the ETA 9089 and how those requirements are interpreted in adjudicating I-140 EB-3 skilled worker petitions. Recently we have seen too many Requests for Evidence concerning this issue.

The situation arises most commonly where the stated minimum requirement for the position is a bachelor’s degree, but the beneficiary obtained a 3-year bachelor’s degree. In particular, where no alternative requirement is provided in H-8 on the ETA 9089, but degree equivalency language is included in H-14, Nebraska Service Center has stated that the information in H-14 appears to contradict the “no alternative requirements” indicated at H-8.

AILA advised NSC, as confirmed by BALCA, that information included in H-14 is intended clarify and not contradict information provided in the more limited checkbox format provided elsewhere in Section H. See, e.g., Matter of General Electric Co., 2011-PER-02696 (BALCA, Jan. 22, 2013);
Accordingly, the NSC, the TSC, and Service Center Operations (SCOPS) reaffirmed at the May 9, 2013 Business Representatives Engagement at the TSC that the policy is to review the entire ETA 9089 to determine the employer’s intent as to the requirements for the position. So make sure to stay consistent on that form.

Immigration Lawyers commonly used Section H-14 to clarify alternate requirements due to the limited format of the ETA 9089. While it appears that NSC will continue to interpret information provided in H-14 as clarifying the job requirements, the NSC also suggested the following method for more clearly indicating job requirements where a bachelor’s is required, but an alternative to a U.S. bachelor’s degree or a foreign equivalent degree (e.g., a 3-year bachelor’s degree) is acceptable:
In addition to checking “Bachelor’s” in H-4, the employer should check “yes” in H-8 that an alternate level of education (“other”) is acceptable.

Section 8-B should set forth the acceptable alternate level of education. If the space is too limited, an asterisk (“*see H-14”) could be used to direct an examiner to section H-14, where the alternate combination of education and experience could be explained in greater detail.

We will keep you posted as new information becomes available on this topic. If you have questions about PERM and I-140 Immigrant Petitions, feel free to contact our office.