Upgrading to EB2: Can I use the same job?

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Many people who have already received PERM certification and EB3 I-140 approval are now considering upgrading to EB2. One of the most frequently asked question is whether they can use the same job for the new PERM and I-140. The answer is no.

An employer may not file a PERM application with different requirements for a position that has already been certified. The new position’s duties must be sufficiently different to justify an advanced degree minimum requirement. If the employer simply adds an advanced degree requirement, and leaves the job essentially the same, the DOL will reject the application.

More to the point, it is not enough to simply add an advanced degree requirement to a job and think that it will qualify for EB2 classification. In the context of the I-140 adjudication, the USCIS will examine the job description to see if it is consistent with a legitimate need for an advanced degree.

The USCIS Adjudicator’s Field Manual (at Chapter 22.2(j)(2)(E)) provides the following information in this regard:

“Mere possession of an advanced degree is not sufficient for establishing an alien’s eligibility for EB-2 classification. Pursuant to 8 CFR 204.5(k)(4) , the petitioner must demonstrate that:

· the position certified in the underlying labor certification application or set forth on the Schedule A application requires a professional holding an advanced degree or the equivalent; and ,
· the beneficiary not only had the advanced degree or its equivalent on the date that the labor certification application was filed, but also met all of the requirements needed for entry into the proffered position.

The petitioner must demonstrate that the position, and the industry as a whole, normally requires that the position be filled by an individual holding an advanced degree. In this regard, the key factors are not whether a combination of more than one of the foreign degrees or credentials is comparable to a single U.S. bachelor’s degree or an advanced degree, but rather that a combination of foreign degrees or credentials:

· Meets the minimum education requirements for the position in the individual labor certification approved by the Department of Labor; and,
· The minimum requirements for the position in the labor certification meet the definition of an advanced degree at 8 CFR 204.5(k)(2) .

The requirement that the position requires, at a minimum, a person holding an advanced degree has resulted in a particular problem involving EB-2 petitions filed on behalf of registered nurses. Although many such nurses possess advanced degrees, they are filling nursing positions in the United States that generally do not require advanced degrees. Specifically, the Occupational Information Network (O-Net) at http://online.onetcenter.org/ indicates that, in the nursing profession, only managerial jobs (director of nursing or assistant director of nursing) or advanced level jobs (clinical nurse specialist, nurse practitioner, etc.) generally require advanced degrees.

A registered nurse job, by contrast, usually does not require an advanced degree holder. ISOs should be aware that the long waiting periods currently required for issuance of third-preference employment-based immigrant visas has caused a “gap” between the available supply of visa eligible nurses and the high demand for nursing services. Nonetheless, adjudicators need to verify the actual minimum requirements for the nursing position offered in the petition. As stated, most nursing positions will not qualify for EB-2 classification.”