An EB-2 petition is an employment-based 2nd preference petition for a foreign professional with an advanced degree or its equivalent (masters degree or higher), or a foreign national who has exceptional ability in the sciences, arts, or business. In some instances, a professional with a Bachelor’s degree (or its U.S. equivalent) and five years of progressively responsible experience in the job being offered may be considered to possess the equivalent of a Master’s degree in the field. Very special considerations must be given to the Indian three year Bachelor of Commerce Degree. We continue to encounter issues with processing cases where an EB-2 case uses the Bachelor’s of Commerce Degree plus five years of progressive experience in the field to equate to a Master’s Degree. It is critical that you consider the use of a qualified legal professional before moving forward with a case of this type.

An EB-3 petition is an employment-based 3rd preference petition for a foreign national employee who has a Bachelor’s degree, or, if no degree, then is a skilled worker, meaning the foreign national has at least two years of work experience for the job being offered. Additionally, there is a sub-category for unskilled workers that requires less than two years experience.

It is also important to note that the government may respond to a PERM application with an Audit that may delay the PERM Application process. Oftentimes, if an employer requests a foreign language in the PERM 
process, the case is likely to come under Audit by the DOL. It is important for the employer and the employee to fully understand the implications of requesting a foreign language requirement in a PERM labor 
certification application in either an EB-3 or an EB-2 case.

Additionally, once the PERM case is approved (whether it be an EB-3 or an EB-2 case) it is important to know that the employer may encounter an issue in the I-140 part of the case. The I-140 must be filed with the 
USCIS not later than 180 days after the PERM labor certification is approved by the USDOL. After the I-140 is filed with the USCIS, the USCIS may issue a Request For Evidence (RFE) that addresses (1) the “ability of 
the employer to pay” the Federally Mandated Prevailing Wage (PW) set forth in the PERM labor certification; and/or (2) the extent to which the PERM has requested “the employer’s reasonable job requirements” in the job description of the PERM application. Suffice it to say that preparing the job description for the PERM labor certification is an “art form”.

What is the “Priority Date” and how does the client get one?

The priority date is the date that an alien initially expresses his or her intent to immigrate to the United States through an appropriate petition. Namely, for employment-based applicants, this date is the earlier of the date an application for labor certification was received by the DOL or the date that an immigrant preference petition was filed. For certain kinds of employment based petitions, a labor certification is not required, such as for national interest waiver applications and petitions for aliens of extraordinary ability or outstanding researchers/professors. In these kinds of cases, the immigration process starts with the immigrant petition rather than the PERM labor certification application.

If a PERM labor certification application is a prerequisite for an immigrant petition, as it is in most EB-2 and EB-3 categories, the petitioner cannot file the I-140 petition until after the DOL approves the PERM labor certification application. The priority date is thus the filing date of the PERM labor certification application with the Department of Labor. The beneficiary will retain this priority date when filing the I-140 petition once the DOL certifies his or her PERM labor cert