Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Friday, May 16, 2014

EB-2 Errors - Do Not Jepordize Your Future

I am seeing an increasing number of Filipinos petitioned in the EB-2 category although their jobs do not qualify for EB-2.  I will generously call these cases mistakes.  USCIS will call it fraud.  These cases are rare, but not as rare as they once were.

To understand the problem, you have to first understand the category.

Everyone with a Master's degree wants to be in the Employment-Based 2nd Preference (EB-2) immigrant category, and with good reason.  The wait for Filipinos before finally becoming a Permanent Resident in the EB-3 category is many, many years.  The wait in EB-2 is zero.  In EB-2, an employer can file a Petition for Immigrant Worker, and at the same time the employee (and some family members) can file an applications for Permanent Residence. 

There are two subcategories of EB-2, commonly known by the short phrases of "professionals holding advanced degrees" and workers of exceptional ability".  Today I'm only talking about advanced degree "professionals.

There are two parts for qualifying as an EB-2 advanced degree professional. 

The first, obviously, is that the worker must have an advanced degree.  There are three ways to meet this requirement; (1) Possess a U.S. degree beyond a baccalaureate (usually a Master's);  (2) Possess a foreign equivalent of a U.S. advanced degree; or (3) have a U.S. bachelor's degree (or foreign equivalent) PLUS five years of progressive experience.  The degree requirement is easy to meet and is usually handled correctly, although sometimes USCIS' definition of "equivalent" is different from what we wish.

It is the second requirement for EB-2 where I am seeing a problem.  For EB-2, the job position itself must require an advanced degree (or similar equivalents above).  Absolutely required.  Not just preferred or desired.

 EB-2 petitions done legally are wonderful. A quick green card.  But in those cases where EB-2 is granted improperly, it becomes a time bomb for the worker.

There is always a small amount of attempted fraud in any government program and immigration is no exception.  When employers misrepresent the "advanced degree" requirement on labor certifications and immigrant petitions I become concerned, and I have seen some blatant examples lately of employers overstating the job requirements.  While the Department of Labor and USCIS catch most of these cases as they move through the processing system, some still make it though to approval.

This causes me to worry, but not for the company.  If I am seeing an increase in these cases, so is USCIS, and they have their own methods for detecting these patterns.  If USCIS and the Department of Labor determine a particular company has submitted false information, the prior filings by that employer will be reviewed.  Fines, criminal charges, and a bar on future petitions are possible if a pattern of falsifying petitions is discovered. 

Who I worry for are the immigrant workers and the consequences they will suffer when even individual case ‘mistakes' are discovered.  At best, if Permanent Residence has not yet been granted, they may be able to convert their petition back to EB-3.  Any residence application filed with the petition would normally just be denied (without a refund of filing fees).  If Permanent Residence was granted before the mistake was found, and it has been less than five years, USCIS can withdraw the grant of Permanent Residence through a process called "recission".  If more than five years, the case would be handled by an Immigration Judge in removal proceedings.

Sometimes these problems can be fixed.  Sometimes not.

Remember, the vast majority of EB-2s have nothing to worry about.  The odds are very high that your case is perfectly correct and legal.  But considering the harsh future penalties for falling victim to an overreaching employer, it never hurts to step back and take an objective look at your work position just to be sure. 

Do ALL the workers in your same job classification meet the advanced degree requirement?  How about similar positions with similar duties?  Did the job advertisements clearly require an advanced degree, or were the requirements vague?  Is the same requirement being applied to U.S. workers?  Is it rare to require an advanced degree in your area or region for the job you are perfoming?

A "no" answer to some of these questions is cause for serious concern.  For other questions, a "no" answer should lead to other questions until you are satisfied that no problem exists.

The purpose of this post is to raise awareness and remind everyone not to rely on questionable promises.  In other words, look out for yourselves.  The truth is, everyone I've seen in this situation had suspicions from the beginning, but they let their intense desire for permanent residence overcome good judgement. 

See our US$60 Attorney Consultation Offer

Go to the Most Recent Philippines-US Immigration Topics 

View Qualifications of Attorney James W. Austin

Go To Austin & Ferguson, LLC Home Page