Visa Lawyer Blog
A great update from AILA to our anxious EB3 applicants and blog readers. Many I-140 denials came out of the Service Centers in the past few months. These denials resulted when applicants failed to properly distinguish the required qualifications between professionals and skilled workers on the new Form I-140 which was introduced on January 6, 2010.
Prior versions of Form I-140 had only one box to check for bachelor degreed professionals and skilled workers, and did not make a distinction between the two classifications. Similarly, there is no distinction in the availability of visas as both are classified in the employment-based, third preference category. Thus, the differences between the professional with a Bachelor’s degree and a skilled worker were without a distinction prior to the introduction of the new form earlier this year.
However, this new form does require the petitioner to distinguish between a professional with a Bachelor’s degree and a skilled worker. The definition of professional is set forth in the regulations at 8CFR 204.5(l)(2), which states:
Professional means a qualified alien who holds at least a United States Baccalaureate degree or a foreign equivalent degree and who is a member of the professions. (Italics in original, emphasis added)
The application of this definition by NSC has resulted in the strict review of whether or not a foreign degree is the equivalent of a U.S. Bachelor’s degree and does not recognize experience as the equivalent of a degree. Thus, the standard to determine equivalence is often different from the standards set forth on the ETA 9089 which may establish alternative requirements that equate a pre-determined level of experience as a substitute for a degree.
This standard is similar to the second preference regulation which also requires a specific degree that is the academic equivalence to meet the requirements of the second preference (EB-2). Lawyers should therefore carefully review qualifications to determine whether the beneficiary meets the qualifications of a professional, pursuant to Section 203(b)(3)(ii), or is a skilled worker under Section 203(b)(3)(i).
A denial on this issue will not preclude the filing of a second I-140 petition using the same approved PERM application but classified as a skilled worker. The cover letter and materials with a second I-140 petition should reference the first petition, include a copy of the denial, and advise NSC that the original PERM Application Form ETA 9089 can be located in the original file. The cover letter should also explain why the second petition has corrected the deficiency upon which the first petition was denied. The expiration of the Certified ETA-9089 should not preclude filing a second petition provided the first petition was filed prior to the 180-day expiration date.