Do the minimum education/experience requirements in your H-1B match those in your Labor Certification (PERM) application?

We have obtained a copy of a USCIS Notice of Derogatory Information (see below) which focuses on a discrepency between the minimum education/experience requirements noted in an H-1B petition, and those noted in a Labor Certification (PERM) application.

As stated in the USCIS Notice:

You filed the ETA Form 9089 which supports the instant Form I-140 petition. The position requires only a high school education and 24 months of experience in the proffered position. Your previous Form I-129 filing for the same position indicated that the position required the minimum of a baccalaureate degree. The duties listed on the Form I-140 and Form I-129 positions are nearly identical. Please explain the positions’ differing educational requirements... unless you can resolve the inconsistent information provided in these two filings with independent objective evidence, the AAO intends to dismiss the appeal and enter a formal finding of fraud into the record. The AAO may also invalidate the labor certification based on fraud or willful misrepresentation.

By way of background, US employers commonly hire foreign nationals to work for them in H-1B status. The H-1B is often followed by a green card case, based on a labor certification application, commonly referred to as a "PERM" application. Further, while the green card case is pending, additional H-1B extensions are often required.

Both an H-1B petition and PERM application require the employer to confirm the minimum requirements for the position offered. Notably, to qualify for the H-1B, the position offered MUST require at least a Bachelor's degree; while a PERM application can be successful with a lesser requirement, such as high school plus 2 years of work experience (see the EB-3, Skilled Worker).

In this case, the foreign national's PERM had a different minimum requirement (high school plus two years) from his H-1B (at least a bachelor's degree), but the job duties in both the H-1B and PERM were identical. So USCIS is thinking possible fraud or willful misrepresentation.

The moral of the story is when requesting immigration benefits, including new H-1Bs, H-1B extensions, visa stamp applications, labor certifications, immigrant petitions, adjustment of status (green card) applications or naturalization (citizenship) applications - it is good practice to review and consider prior AND prospective submissions to the US government, PRIOR to filing the request.

Notably, positions and circumstances can change, and in such cases, pro-actively attaching an explanation, with supporting documentation (if applicable) often helps to encourge approval, and avoid further complications.


USCIS Notice of Derogatory Information