bachelor + 5 exp cann't file EB2 under PERM?

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Yesterday I wrote to my attorney for my labor status, and was told:

Your position is a Senior Software Engineer position, requiring a Bachelor's degree plus 5 yrs' S/W experience.

You yourself do not have a Master's degree. It appears not possible to do EB2 for somebody who does not have a Master's under the new PERM. The information available till now is that Bachelor's + 5 yr exp would not work under the new PERM system.

So does this mean a bachelor can only file EB3? any other chance for EB2?

Please advice!

Thanks!
 
I think I read a while ago that BA+ 5 years experience can be substituted for a masters. Do NOT take my word on it, but look through the DOL publications and prevailing wage documents online to reqad up on it. I would not take the lawyer's word on that until I have seen it in written. Or ask the lawer to get you the official PERM documentation of that.
 
Ba + 5

Below is the official USCIS information. PERM is independent from the USCIS applications, so your lawyer probably needs a crach sourse in some of this. So, BA+5 is valid substitutions for a masters.

EB-2 Eligibility and Filing

The EB-2 classification includes: aliens who are "members of the professions holding advanced degrees or their equivalent" and aliens "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States."

A petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (beyond the baccalaureate) and the alien possesses such a degree or the equivalent. The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-baccalaureate experience in the specialty.

The experience CANNOT be used unless gained from a different job (different duties) than for the job for which the petition is being filed.
 
Question

Bjorn,
I have a question.

Now suppose the job description says M.S. required, for a Software Engineer position.

Also, if we look up in O*Net the title Computer Software Engineer, Applications assumes only Bachelors and NOT Masters. Job Zone is 4.

So will DOL consider believe the company or believe their own classification system? If they choose to believe the company, then it mkaes their own system unimportant.

IMHO, a case of conflict in job requirements between the Employer and the DOL will be an ideal case for further investigation( read "Audit" ) by the DOL. It will surely raise questions. Don't you think so? Though there might still be a better chance of going thru under EB-2 in PERM...say what?

Thanks,
-msh626
 
Business necessity

yes, thats where the concept of "business necessity" and audit comes into picture. Any requirements which are not normal to the position (be it Job zone or Education & Training category) will be subjected to audit and employer having to prove business necessity. This is obvious since for any requirements which are beyond the normal prescribed by ONET, employers have to answer question H12 on the 9089 PERM form as "yes", which pretty much will trigger an audit.



msh626 said:
Bjorn,
I have a question.

Now suppose the job description says M.S. required, for a Software Engineer position.

Also, if we look up in O*Net the title Computer Software Engineer, Applications assumes only Bachelors and NOT Masters. Job Zone is 4.

So will DOL consider believe the company or believe their own classification system? If they choose to believe the company, then it mkaes their own system unimportant.

IMHO, a case of conflict in job requirements between the Employer and the DOL will be an ideal case for further investigation( read "Audit" ) by the DOL. It will surely raise questions. Don't you think so? Though there might still be a better chance of going thru under EB-2 in PERM...say what?

Thanks,
-msh626
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