1. The Employer's Eligibility for Form I-140 Petition

The employers and the alien employees often neglect the distinction of issues between the DOL labor certification process and the subsequent USCIS form I-140 immigrant petition process. Because of such failure of distinction, the employers and the alien employees experience denials of form I-140 petitions after spending expenses and long time. 

For the employer's eligibility, most of cases have denied on the employer's financial ability to pay the labor certification wage to the alien beneficiary. Since the employer is required to prove such financial ability to pay from the "date of labor certification application filing (priority date)" to I-140 petition adjudication, the longer the labor certification application takes, the employers and the alien employees tend to face an increased risk of I-140 denial, after obtaining the labor certification applications. The issue of employee's eligibility involves primarily the definition of education and experience which are required by the employers in the labor certification applications. 

Both the employer's eligibility and the employee's eligibility issues are usually not raised at the labor certification stage by the DOL, as the DOL perceives their job to be primarily testing the American workers' labor market for various jobs. When it comes to the eligibility of the employers and the employees, the DOL and the USCIS consider that it is primarily the job of the USCIS.

2. The Employee's Eligibility of Form I-140 Petition

Most I-140 petitions are denied primarily on the issues of the the employer's eligibility or the employee's eligibility. There are some of employers whose I-140 petitions for either EB-2 or EB-3 have been denied after the approval of their labor certification applications requiring "Bachelor's Degree or Equivalent" as educational requirement, when their alien employee did not have a single bachelor's degree. 

Such nightmare has been brought about by their misunderstanding of the term "equivalent" to mean "combination of two degrees or suitable education, training, and experience", as evaluated by the foreign credential evaluation agencies. 

The USCIS changed the interpretation of EB-2 and EB-3 statutory requirements, particularly the education requirement in the labor certification applications. Previously, the USCIS adopted more or less flexible policies or interpretation. Then the USCIS has adopted a restrictive and narrower interpretation of the requirements, posing a serious challenge to the eligibility of the I-140 petition for the alien beneficiaries. Accordingly, some of the labor certification applicants who filed the I-140 have lately faced denial of I-140 petitions.

The employee's eligibility involves the definition of education and experience which are required by the employer in the labor certification application. This issue is often called "equivalent" issue, which affects Indians more than other nationalities because of the educational systems in India.

 

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