1) QUESTION:

I have a little over five years of work experience in my field and I have a bachelors degree. Of the five years, 2 years of experience is from my current employer. Am I eligible to have my company file a PERM Labor Certification filing for me in the second preference (EB2) category?

ANSWER:

The second preference employment based category (EB2) is for those foreign national workers who are working in a position that requires a masters degree or the equivalent as the minimum requirement. A combination of a bachelor’s degree and 5 years experience after the degree is considered by the Department of Labor to be the equivalent of a masters degree.

You probably do not have 5 years counting toward an EB-2 PERM Labor Certification. As a general rule, the 5 years must be from a different company. Since you did not have 5 years experience when you started in the position, you cannot claim that the position requires at least 5 years experience. 

However, experience with the company can sometimes be counted when it can be shown that the experience gained has been in other positions which are not substantially similar to the position that is being offered in the PERM application or where it can be shown that it is no longer feasible for the company to train an employee for the position. 

The PERM process is complicated, long, and expensive and the slightest mistake can lead to a denial. It is highly recommended that companies hire an experienced immigration law attorney to handle their PERM applications.

2) QUESTION:

My wife and I are U.S. Permanent Residents. I have been spending a lot of time outside the U.S. due to work. My wife and I recently had a baby girl while outside the U.S. What is the baby's status? Is she a Permanent Resident like us, or do we have to file a petition for her to become a Permanent Resident?

ANSWER:

This is an important question, because depending on whether or not this is handled correctly, this could be a very simple process, or it could have tragic results.

There is a little-known rule in the immigration regulations that says that where a Permanent Resident woman gives birth abroad, the child is eligible to be admitted to the U.S. as a Permanent Resident, but only if the mother is 1) returning to the U.S. as a Permanent Resident and 2) brings the child with her on her first trip back to the U.S. after the child is born and 3) this trip is before the child's 2nd birthday.

Unfortunately many Permanent Residents do not know this rule and they either take a trip back to the U.S. without the child or they wait until after the child's 2nd birthday to bring the child to the U.S. Where this happens, the child is not eligible to enter the U.S. as a permanent resident under this rule, and the parent must file a petition for the child to enter the U.S. as a Permanent Resident. This can result in hardship for the family, as it can take many years for a visa to become available for a petition for the child of a Permanent Resident.