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PERM Processing Labor processing through PERM

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  #1  
Old 12-16-2011, 10:50 AM
sdckkbc sdckkbc is offline
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Default Employer Required Experience Level exceeds SVP - Chances of Audit?

My PERM is being applied under EB2 with job requiring BS + 5 years of relevant experience. According to DOL the Specific Vocational Preparation (SVP) level for this occupational title is at least 7 but less than 8 (7<8). DOL takes the position that the SVP is 7, which equates to at least two years but not more than four years of practical experience. Fearing audit, my employer is already preparing a Business necessity memo.

Are PERM audits common where required experience for job exceeds SVP? Is success rate good once audit is replied with business necessity explanation?
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  #2  
Old 12-16-2011, 11:23 AM
sparky_jones sparky_jones is offline
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Originally Posted by sdckkbc View Post
My PERM is being applied under EB2 with job requiring BS + 5 years of relevant experience. According to DOL the Specific Vocational Preparation (SVP) level for this occupational title is at least 7 but less than 8 (7<8). DOL takes the position that the SVP is 7, which equates to at least two years but not more than four years of practical experience. Fearing audit, my employer is already preparing a Business necessity memo.

Are PERM audits common where required experience for job exceeds SVP? Is success rate good once audit is replied with business necessity explanation?
I went through the same FUD (Fear, Uncertainty, Doubt) when my PERM was filed a few months back. My job description was requiring BS + 7 (or MS + 5). I panicked when I researched the whole SVP thing and realized that the SVP for my position was exceeding the SVP limit defined by DOL.

I had a detailed discussion with the lawyer. He told me that in his extensive experience filings PERM applications, he has seen that the DOL is not too hung up on this issue. The job title and the job description should adequately justify the education and experience requirements; the objective SVP criteria is secondary. The application should adopt the position that the requirements are normal to the occupation, and answer question H.12 as "Yes".

My PERM went through fine and was approved without audit.

I think it's a good idea to be prepared for audit and have the business necessity letter ready in your internal file. However, don't assume that it will surely trigger audit. Focus on making sure the job title and job description convincingly justify the degree and experience requirements.
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EB3 - India (PD:Aug 2003)
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I-485 RD: 7/23/2007 (TSC)
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  #3  
Old 12-16-2011, 11:52 AM
sdckkbc sdckkbc is offline
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Thank you for your detailed reply; I noticed that attorney has replied 'No' to H.12. DO you see this as an issue?
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  #4  
Old 12-16-2011, 01:21 PM
sparky_jones sparky_jones is offline
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Thank you for your detailed reply; I noticed that attorney has replied 'No' to H.12. DO you see this as an issue?
There are two sides to the coin for the H.12 question.

By replying "No" to H.12, you are acknowledging that the requirements you have put forth are not normal to the occupation per DOL definition (on the SVP scale). This could cause the PERM engine to flag the need for an audit for business necessity. HOWEVER, whether an audit is issued or not is at the discretion of the officer who reviews the application in its entirely. The officer might decide, after reviewing the job description, that general industry standards do match the requirements, regardless of the SVP standard. They might decide to ignore the PERM engine's flag. There are numerous cases where the application was approved without audit despite the "No" response to H.12.

By replying Yes, you are saying that the requirements you have put forth are normal to the occupation, per industry standards. While this would bypass the PERM engine's audit detection, if the officer reviewing the application determines that your requirements are not normal, they can immediately deny the application (without even an audit) on the grounds that you are willfully falsifying the facts.

So, you see, there is risk in either response. One may argue that there's greater risk in the Yes response (outright denial).

The response to H.12 is not black and white. It is up to your lawyer to decide how they want to handle it based on their practice experience. Ultimately, the job title and job description are the driving factor. I would say don't get too hung up on H.12. Let the lawyer use the strategy he/she is most comfortable with.
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EB3 - India (PD:Aug 2003)
I-140 Approved (PP): 06/14/2007 by TSC
I-485 RD: 7/23/2007 (TSC)
New EB2 I-140 Approved: 12/5/2011 (TSC)
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  #5  
Old 12-16-2011, 01:54 PM
sdckkbc sdckkbc is offline
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Thanks bud... you have been very helpful in calming my concerns.
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  #6  
Old 12-16-2011, 04:20 PM
invincible_coder invincible_coder is offline
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@sparky_jones: Thanks for posting a detailed response.

I've going through the same FUD since last 10-15 days. My employer's lawyer is Fragomen and they asked my employer to choose a Onet code which has SVP >= 8(Zone 5) to file my application under EB2.

For IT occupations, there is hardly anything that falls under Zone 5(SVP 8). Lawyers say that they can file under EB2 for Zone 4, but it increases the probability of an audit.

After spending countless hours on various immigration forums, I see that EB2 with Zone 4 is getting approved. its not a hard requirement to file with a job code under Zone 5.

Before I convince my employer and lawyer(which I am planning to change, heard some bad reviews about Fragomen), I wanted to find out if there was a pattern in skill level(or wage level) under Zone 4 for EB2 applications. is it true that only applications with Level 3 & 4 for Zone 4 are being approved under EB2?

What was your wage level(PWD) in your EB2 application?
Also, since my employer is pretty open to change laywers, does anyone have any recommendations for a lawyer specializing in such EB2 applications?

Thanks,
Your help is much appreciated.
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  #7  
Old 12-16-2011, 04:32 PM
sparky_jones sparky_jones is offline
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Originally Posted by invincible_coder View Post
@sparky_jones: Thanks for posting a detailed response.

I've going through the same FUD since last 10-15 days. My employer's lawyer is Fragomen and they asked my employer to choose a Onet code which has SVP >= 8(Zone 5) to file my application under EB2.

For IT occupations, there is hardly anything that falls under Zone 5(SVP 8). Lawyers say that they can file under EB2 for Zone 4, but it increases the probability of an audit.

After spending countless hours on various immigration forums, I see that EB2 with Zone 4 is getting approved. its not a hard requirement to file with a job code under Zone 5.

Before I convince my employer and lawyer(which I am planning to change, heard some bad reviews about Fragomen), I wanted to find out if there was a pattern in skill level(or wage level) under Zone 4 for EB2 applications. is it true that only applications with Level 3 & 4 for Zone 4 are being approved under EB2?

What was your wage level(PWD) in your EB2 application?
Also, since my employer is pretty open to change laywers, does anyone have any recommendations for a lawyer specializing in such EB2 applications?

Thanks,
Your help is much appreciated.
My wage was Level 4.

If you have the flexibility to choose your lawyer, and you are not adequately convinced by the strategy your lawyer is adopting,you should definitely switch. PM me if you need a recommendation for the firm that handled my case.
__________________
EB3 - India (PD:Aug 2003)
I-140 Approved (PP): 06/14/2007 by TSC
I-485 RD: 7/23/2007 (TSC)
New EB2 I-140 Approved: 12/5/2011 (TSC)
Interfiled 12/15/2012
Greened on Feb 10, 2012!
Total Contribution: $200
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