I want to share some tips to improve your chance of a smooth road to I-140 approval. PERM is a monster, but don’t let the seemingly “easy” I-140 hurdle fool you – the I-140 stage can present its own difficulties. Just remember, every step counts! 

There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition and (3) Adjustment of Status/Register Permanent Residence. Once the PERM application is approved, you have cleared a huge hurdle, but don’t forget about the next step: Getting the I-140 Immigrant petition approved. You will not be able to file for your green card until this second hurdle is cleared. That’s why it’s important to have everything in order from day one of the green card process.

Meeting the minimum education and experience requirement for the position

No matter what employment based preference category the PERM position falls under (ex: EB-2 or EB-3), you must always fully qualify for the job opportunity.

Education

If there is a minimum education requirement for the PERM position, it will be reflected on the PERM form (ETA form 9089). At the I-140 stage, the U.S Citizenship and Immigration Services (USCIS) will want to see all diplomas and transcripts to verify that you meet the minimum education requirement for the job opportunity as of the priority date (Date the PERM application is filed). Before beginning the PERM process, it should always be verified that you have a qualifying degree.

For instance, if the PERM position requires a Masters degree in Computer Science or a related degree, but you have a Masters degree in Pharmacology, USCIS will deny your case unless an argument can be made that this degree field is related to Computer Science.

Also, if you have a foreign degree, that degree must be equivalent to a U.S. degree if applying in the EB-2 category or EB-3 -professional category.

• U. S. Bachelor’s degree = 4 years of study
• U.S. Master’s degree = 6 years of study

Individuals with foreign degrees sometimes run into trouble at the I-140 stage because the degree is not considered equivalent to a U.S. degree as stated above. For example, a Bachelor of Computer Science degree from India is usually 3 years of study. If the job requires a U.S. Bachelor’s degree in Computer Science or its foreign equivalent, the qualifying degree must be in that field AND must be the U.S. equivalent of a Bachelor’s degree. In the case of a 3 year Bachelor’s degree from India alone, the beneficiary would not qualify.

Therefore, before beginning the PERM process, it is important that all copies of diplomas and transcripts be readily available. Diplomas and transcripts should be carefully reviewed and analyzed against the requirement for the job and all options should be taken into consideration. For example, upon further review, it may be that the beneficiary has a 2 year Master’s degree in Computer Science and a 3 year Bachelor’s degree in that same field of study from India, both of which can be combined to equal the equivalent of a U.S. Bachelor’s degree (3+2 scenario).

Quick Note: Combination of degrees can be tricky. USCIS, for instance, will not usually accept combinations that are not in the same field of study (example: 3 year Bachelor’s in Computer Science and 2 year Master’s in Business Administration).

Quick Note: If the job requires any type of certification or license as part of the minimum requirements, be sure to have those available and up to date. Any certificates or licenses must be obtained before your employer files the PERM application. Copies will have to be provided to USCIS.

Experience

Just as with education, if the job requires a certain amount of experience, you will need to meet that experience requirement as of the priority date (Date the PERM application is filed).

For example, if the PERM position requires a Master’s degree in Computer Science and 3 years of experience, you will have to meet that 3 year requirement as well (the experience must be obtained after the Bachelor’s degree when applying in the EB-2 category). USCIS will want to see employment verification letters (EVL) as proof that you meet the minimum experience requirement for the job.

Ideally you want the following information to be listed on the EVL to avoid an RFE or denial:

• Dates of employment: Both the start and end date must be provided on the EVL so that USCIS can verify the length of employment. Further, it is important that the dates of employment match the dates listed on the PERM form. Any inconsistencies can raise questions.
• Job Title: The job title you held must be provided on the EVL so that USCIS can verify that you have the correct experience as required on the PERM form. Again, it is important that the job titles match the titles provided on the PERM form to avoid any questions about inconsistencies.
• Job Description/Job Duties: The EVL must contain any related job duties held so that USCIS can further verify your qualifications for the position.
• Special Skills: If the position requires a special set of skills, those will need to be accounted for on the EVL.
• Additional Information: The EVL must state whether the position was full-time or part-time, be on company letterhead, signed by a company representative (with the rep’s title listed), dated, and contain the company’s address.

If EVLs cannot be provided, certain secondary evidence may be submitted, but USCIS has full discretion to accept or not accept that documentation. Some secondary evidence includes: Affidavits from previous co-workers attesting to your employment, pay-stubs, W-2s, offer letters, etc.

If USCIS feels that the documentation provided is insufficient or if USCIS notices inconsistencies, your case may be questioned or denied.

Although it is not required to have the EVLs prior to filing the PERM application, it is beneficial so that everything can be properly reviewed and verified before filing. If employment is verified early on and experience letters obtained, a possible denial can be avoided.

Ability to Pay

USCIS will need to verify that the PERM employer has the ability to pay you at least the prevailing wage issued by the Department of Labor. Your employer will have to demonstrate its ability to pay the prevailing wage (or the offered wage, whichever is higher) from the priority date until the green card is received. There are 3 ways to demonstrate ability to pay:

(1) Wages paid to the beneficiary, (2)  the company’s net income, OR (3) the company’s net assets

To make an ability to pay determination, USCIS will need to see evidence in the form of: Any wages paid to you (W-2, pay-stubs), and the employer’s tax return for the years in question or an audited financial statement.  Although it is not required that you work for the PERM employer until you receive the green card, being on payroll from the date the PERM application is filed and being paid at least the prevailing wage (or the offered wage, whichever is higher) will help you avoid a denial.

Every case is different and should be reviewed independently by an immigration attorney. Just remember, always think ahead and always be prepared!