Practice Tip: Indicating Alternate Degree/Experience Requirements on ETA 9089

AILA NSC Liaison has been in communication with the NSC regarding several RFEs that question how alternate degree and experience requirements are stated on the ETA 9089 and how those requirements are interpreted in adjudicating I-140 EB-3 skilled worker petitions.

The situation arises most commonly where the stated minimum requirement for the position is a bachelor's degree, but the beneficiary obtained a 3-year bachelor's degree. In particular, where no alternative requirement is provided in H-8 on the ETA 9089, but degree equivalency language is included in H-14, NSC has stated that the information in H-14 appears to contradict the "no alternative requirements" indicated at H-8. AILA advised NSC, as confirmed by BALCA, that information included in H-14 is intended clarify and not contradict information provided in the more limited checkbox format provided elsewhere in Section H. See, e.g., Matter of General Electric Co., 2011-PER-02696 (BALCA, Jan. 22, 2013); AILA Doc. No. 13012442 (posted 1/24/13). Accordingly, the NSC, the TSC, and Service Center Operations (SCOPS) reaffirmed at the May 9, 2013 Business Representatives Engagement at the TSC that the policy is to review the entire ETA 9089 to determine the employer's intent as to the requirements for the position. For a previous discussion on the subject, see NSC Liaison Committee I-140 Practice Tips and Updates, AILA InfoNet Doc. No. 07031267(posted 3/12/07).

Practitioners have commonly used Section H-14 to clarify alternate requirements due to the limited format of the ETA 9089. While it appears that NSC will continue to interpret information provided in H-14 as clarifying the job requirements, the NSC also suggested the following method for more clearly indicating job requirements where a bachelor's is required, but an alternative to a U.S. bachelor's degree or a foreign equivalent degree (e.g., a 3-year bachelor's degree) is acceptable:

• In addition to checking "Bachelor's" in H-4, the employer should check "yes" in H-8 that an alternate level of education ("other") is acceptable.
• Section 8-B should set forth the acceptable alternate level of education. If the space is too limited, an asterisk ("*see H-14") could be used to direct an examiner to section H-14, where the alternate combination of education and experience could be explained in greater detail.

NSC Liaison is continuing to discuss the issue through liaison channels, but cautions members to exercise care when drafting ETA 9089s to ensure that any alternate job requirements are clearly expressed.