H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Software Engineer.”
The CO denied the labor certification stating the alternative requirements for the position were different (not substantially equivalent) from the primary job requirements on the ETA Form 9089. The Employer mentions as an alternative requirement for this position – 12 years of related experience as being equivalent to possessing a Bachelor’s degree. On the Form, the Employer lists the “primary requirements of a Bachelor’s degree in Engineering, Electronic Engineering, or a closely related field, and 60 months of experience” in the job offered. The CO cited a violation of PERM Regulation 20 C.F.R. ยง 656.17(h)(4)(i).
The Employer requested reconsideration of the denial stating it only listed one education and experience requirement; therefore, it did not accept an alternative combination of education & experience. They argued that their recognition of 12 years of experience as the equivalent of a bachelor’s degree is a widely used standard in the IT industry and among U.S. educational institutions.
After receiving the Employer’s request for reconsideration, the CO maintained his decision to deny certification and forwarded the case to BALCA. In his letter to BALCA, the CO contested the Employer’s statement that “three years of work experience equals one year of college education.” When validating the equivalency of the employer’s alternative requirements against the primary requirements, Specific Vocational Preparation (SVP) level is calculated utilizing the detailed SVP guidance provided in the administrative directive, Field Memorandum (FM). Per the FM, a Bachelor’s degree is the equivalent of two years of work experience.
Upon review, BALCA confirmed the denial because they believed the Employer’s primary and alternative requirements were not considerably equivalent. The Board also stated there was “nothing in the PERM regulations, regulatory history, or the Field Memorandum to support a finding that three years of experience without a degree is the equivalent of one year of college/university level credit.”