Changes made last year to the application used in the PERM process seem to have resolved some longstanding weaknesses in the application while potentially creating new issues for employers filing PERM applications. This paper is intended to overview some of these consequences.
In the regulations that govern US immigration law, the word "professional" is used in many different contexts, including in both immigrant and non-immigrant classifications by the Department of Labor ("DOL") and the US Citizenship and Immigration Services ("USCIS"), and these can dictate different regulatory requirements. Consequently, employers and practitioners must be cautious when traversing the landscape of H-1B specialty occupations, permanent labor application filings, and Immigrant Petitions for Alien Workers (Form I-140) since the terminology, underlying regulations, applications, and requirements do vary.
In the context of filing a permanent labor application ("PERM") by submitting Form ETA 9089 to the DOL and filing the subsequent immigrant petition Form I-140 to USCIS, the use of the term "professional" is defined in two different contexts and for two different purposes. This difference in definitions between the agency regulations and usages has caused confusion for employers, practitioners, and USCIS adjudicators in the past, and given the recent changes that the DOL has made to Form ETA 9089, we may see more such confusion as USCIS begins to adjudicate cases based on those new ETA 9089s.
The likelihood of adjudication issues arising over these differing definitions is compounded by the fact that practitioners and employers have been filing PERM applications for over one year but have yet to learn how USCIS will respond to future I-140 filings based on filings on the new ETA 9089s since processing of PERM filings is currently backlogged.
In June of 2023, the Department of Labor (DOL) implemented an updated version of Form ETA 9089 Permanent Labor Application (or "PERM" application) on the Foreign Labor Application Gateway (FLAG) platform. As of June 30, 2024, DOL reported on its website for processing times that ETA 9089 applications from June of 2023 and earlier were being adjudicated (analyst review) with the current estimate for a PERM application filed in March 2024 being 388 days.1 Over one year after the implementation of the new version of Form ETA 9089, the DOL is finally reviewing the first instances of applications filed on that form.
And once those applications are adjudicated by DOL officers and certified, employers will then turn to the US Citizenship and Immigration Service (USCIS) to file form I-140 Immigrant Petitions for Alien Workers, and the USCIS officers will view the new ETA 9089s in use for the first time.
The Disconnect Between Forms I-140 and ETA 9089
The new version of the PERM application was intended to offer solutions to problems that long plagued the prior version of Form ETA 9089, including character limitations, the so-called "Kellogg language", and where to indicate training and certificates received by the foreign national, etc.2 Indeed, while the new form caused practitioners some concerns about how certain questions should be interpreted, it has been in use for over one year and end users have developed practices to use and complete the form. However, any practitioner who has previously experienced the sting of a Form I-140 RFE in the past based on a USCIS misinterpretation of an underlying ETA 9089 on the previous version of the form may speculate about how an adjudicating USCIS officer might similarly misinterpret the new form.
USCIS adjudicators' misunderstandings of the employer's intent in completing the forms were prevalent enough in the past to warrant inquiries in various stakeholder question and answer sessions between the American Immigration Lawyers Association (AILA) and USCIS service center operations.3 I can also attest from personal experience that I have received several RFEs on behalf of clients over the years questioning the selected employment based category due to the ambiguity inherent in the ETA 9089. While the frequency and overall number of these RFEs was not enough to warrant a change in how I prepared ETA 9089s and Form I-140s, a few changes in the new ETA 9089 have me wondering whether we may see an increase in RFEs from USCIS adjudicators as they begin to try to interpret the employers' intent in filling out the ETA 9089. Why would this be an issue? This is because the disconnect between the DOL form ETA 9089 and the USCIS' Form I-140 lies in the identification of which employment-based category the employer is filing the petition.
Form I-140 may be filed for both PERM-based and non-PERM-based petitions. When choosing a PERM based I-140 classification, the options include:
- option 1.d for members of professions holding an advanced degree,
- option 1.e. for a professional (at a minimum possessing a bachelor's degree or a foreign equivalent degree to a bachelor's degree), or
- option 1.f. for a skilled worker (requiring at least two years of specialized training or experience).
The regulations define an "advanced degree," also known as an EB-2 classification, at 8 CFR 204.5(k)(2):
Advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.
The other three categories, all known as EB-3 classifications, are defined at 8 CFR 204.5(l)(2):
Other worker means a qualified alien who is capable, at the time of petitioning for this classification, of performing unskilled labor (requiring less than two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United 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. [emphasis added]
Skilled worker means an alien who is capable, at the time of petitioning for this classification, of performing skilled labor (requiring at least two years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. Relevant post-secondary education may be considered as training for the purposes of this provision.
In this context, USCIS maintains that a "United States baccalaureate degree" or foreign equivalent cannot be a combination of lesser degrees and/or work experience.4 So if the employer accepts a combination of education and experience to equate to a bachelor's degree for the position in the underlying ETA 9089, the position would not qualify under either the EB-2 Advance Degree category or the EB-3 Professional Category. Instead, the Form I-140 would be filed as a Skilled Worker. While the Skilled Worker category is defined as requiring at least two years training or experience, the regulations also note that relevant post-secondary education may be considered as training for the purposes of this provision and the two years is a minimum threshold. In the USCIS comments to the final rule, the agency noted that foreign nationals "qualifying for the third preference by virtue of education and experience equating to a bachelor's degree will qualify for the third employment category as skilled workers with more than two years training of training and experience."5
The underlying disconnect between the Form ETA 9089 application and the I-140 application is that while the I-140 asks for the case type, and offers three options for the EB-3 category, neither in the legacy Form ETA 9089 nor in the new FLAG based Form ETA 9089 is there a corresponding question where the employer can specify exactly which type of classification they are requesting. Instead, the legacy form included questions in Section H that asked for the education and experience requirements, and the USCIS officer would have to review all of the sections of the ETA 9089 to interpret whether the classification marked on the Form I-140 is supported by the requirements listed in Section H, and then determine whether the foreign national qualifies for the minimum requirements.6
While the benefit in this ambiguity between the forms is that employers may sometimes use the same certified ETA 9089 for multiple possible categories, the ambiguity also could lead USCIS officers in the past to misunderstand the employer's intent. This could be attributed to both a training issue, but also a clear effect of the lack of coordination between the formats of the ETA 9089 and I-140 forms.
This circumstance commonly arises at the Form I-140 filing of an EB-3 skilled worker based on a PERM application that was completed for a position requiring a bachelor's degree and allowing for a combination of education and experience. Such formulations are common when considering an employer's minimum requirements that allow for foreign nationals from countries that have baccalaureate level degrees that are not directly equivalent to a four-year US baccalaureate degree. Examples of this include India, which has both three- and four-year bachelor's degrees, depending on the area of study, and Germany, which has baccalaureate-level degrees that include a combination of academics and apprenticeship experience. Based on USCIS's interpretation of a "US baccalaureate degree" neither the three-year Indian bachelor's degree nor the German technical degree that includes an apprenticeship component will be considered equivalent to a US four-year bachelor's degree since it is not a four-year academic course of study. So if the employer accepts a combination of education and experience, the job description used in the PERM process must indicate the combination of education and experience that is acceptable as a bachelor's degree equivalent for the position.
In this type of example, when the position required a bachelor's degree, but the employer would accept a combination of education, training or experience, and had marked the minimum educational requirement as a "bachelor's degree," they would have also included the qualifying language about the acceptable alternatives elsewhere in section H per DOL guidance. The USCIS officer adjudicating the case would see the "bachelor's degree" requirement marked on the ETA 9089 but may have missed or misunderstood the significance of the qualifying language elsewhere in section H. Then, assuming that the I-140 was misfiled for Skilled Worker when it should have been filed as a professional, the officer would issue an RFE asking for clarification and warning that the foreign national did not have a US equivalent to a bachelor's degree, since their equivalent is based on a combination of education and experience.
How Changes to Form ETA 9089 Have Made 'Professionals' Problematic
The updated ETA 9089 now includes a question asking for the "Occupation Type."7 This is found on the new ETA 9089 in section H.b., and the options include: professional occupation, non-professional occupation, college or university teacher, Schedule A / sheepherder8, or professional athlete. It is important to note that the purpose of this question is for the Department of Labor to determine if the correct steps for recruitment were complete for each type, whether according to 20 CFR 656.17(e)(1) for a professional occupation, or 20 CFR 656.17(e)(2) for a non-professional occupation, etc. Additionally, the definition of "Professional Occupation" here is based on the PERM regulations found at 20 CFR 656.3:
Professional occupation means an occupation for which the attainment of a bachelor's or higher degree is a usual education requirement. A beneficiary of an application for permanent alien employment certification involving a professional occupation need not have a bachelor's or higher degree to qualify for the professional occupation. However, if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on the Application for Permanent Employment Certification form. (emphasis added)
The definition of "Professional Occupation" found at 20 CFR 656.3 is distinguishable from the definition of "Professional" discussed above and found at 8 CFR 204.5(l)(2), both in terms of the intended purpose (identifying the correct method of recruitment in the former and identifying a sub-category of EB-3 classification in the latter), as well as different in their scope, with the definition of "professional" found in 8 CFR 204.5(l)(2) being more narrowly defined. For example, while an EB-3 position would likely be considered a "Professional Occupation" for the purposes of PERM recruitment (20 CFR 656.3) if it was filed for an IT or engineering-based role with minimum requirements that allow the position to be filled by someone with a bachelor's degree based on a combination of education and experience, it would not be considered a "Professional" position for the purposes of its EB-3 category (8 CFR 204.5(l)(2)) because it allows for the combination of education and experience to meet the degree equivalency.
As a result, when a USCIS officer reviews a case where the ETA 9089 was completed as a "Professional Occupation" for recruitment purposes at section H.b., if they are not adequately trained or experienced, they may mistake this to mean that it is supposed to be filed as a professional petition, either an EB-2 member of a profession holding an advanced degree, or an EB-3 Professional possessing at a minimum a bachelor's degree or foreign degree equivalent to a U.S. bachelor's degree. In such an instance, they may issue a Request for Evidence ("RFE"), Notice of Intent to Deny ("NOID"), etc. based on their misunderstanding and the lack of correlation between the forms.
The other change in the new Form ETA 9089 is that it no longer contains questions eliciting the minimum requirements for the underlying position that the PERM is based on, as were previously found in Section H of the prior PERM form. Instead, the requirements are incorporated by reference to the underlying prevailing wage application by linking the prevailing wage determination ("PWD") to the ETA 9089 in Section E of the new form.9 Additionally, once issued, the certified ETA 9089 will only be a two-page certification. How then will a USCIS officer know whether the underlying requirements for the PERM align to the requested EB classification? This will be a change of process for USCIS, because the Department of Labor has given USCIS access to the system that stores the PWD and ETA 9089, and the USCIS officer will have to review the underlying prevailing wage to review the minimum qualifications for the role to determine whether the I-140 beneficiary qualifies for the underlying PERM position and whether the underlying PERM position and I-140 beneficiary are qualified for the requested employment based category.
Conclusion
The extent to which these changes result in a large number of RFEs once the change over from old-version certified 9089s to new-version certified 9089s depends on the level of training that the USCIS officers receive on reviewing the new ETA 9089 and the associated PWDs to determine the minimum requirements. The number of additional steps that practitioners may need to take to assist the officer in making the correct decision will remain to be seen.
However, it may be prudent to provide some level of explanation to USCIS in the filing, especially for EB-3 Skilled Worker filings, to specify the minimum requirements in the associated PWD and define why they correspond to the skilled worker classification. Employers and practitioners could, for example, include a copy of the PWD determination and unambiguously highlight the minimum requirements. Further, the filing could include an explanation of the definition of a "Skilled Worker," and how the position's minimum qualifications meet that definition. And the filing could also include a definition of both "Professional Occupation" found at 20 CFR 656.3 and the definition of "Professional" found at 8 CFR 204.5(l)(2), and an explanation on the differences between their meanings and purposes to show that an I-140 could be filed in the "Skilled Worker" category based on a PERM application filed as a "Professional Occupation"; without their being any inconsistencies between the regulatory meanings of those terms. A similar approach would be used in response to an RFE on this issue. In any event, just as practitioners had to adjust to filing the new form ETA 9089, we will now likely need to adjust how we carry the new certified ETA 9089 forward to the I-140 filing phase.
Footnotes
1. US Department of Labor (DOL), processing times webpage: https://flag.dol.gov/processingtimes
2. Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) is a BALCA decision that provides controlling guidance on alternative requirements for the ETA 9089.
3. See for example, AILA Notes on Liaison Q&As with SCOPS (1/29/14) AILA Doc. No. 14022045; and Q&As from the 5/9/13 Business Engagement with NSC and TSC, 5/9/13 AILA Doc. No. 13081463.
4. See for example, Q&As from the 5/9/13 Business Engagement with NSC and TSC, 5/9/13 AILA Doc. No. 13081463. Answer to question 5 notes in part: "There is no provision in the statute or regulations. that would allow for the combination of lesser degrees and/or work experience to be considered the equivalent of a U.S. bachelor's degree."
5. 56 FR 60897, 60900 (Final Rule: Employment-Based Immigrants, Nov. 29, 1991).
6. Hoosier Care, Inc. v. Chertoff, 482 F.3d 987, 990 (7th Cir. 2007)
7. A non- electronic copy of the new form can be found at https://www.dol.gov/agencies/eta/foreign-labor/forms
8. While it is not related to this article, if you would like to read up on the Department of Labor's interest in Sheepherders please see the August 1, 2001, ETA Advisories: Field Memorandum No. 24-01.
9. Please see pages 6-7 of the ETA 9089 instructions, available at https://www.dol.gov/agencies/eta/foreign-labor/forms
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
