The minimally qualified vs. more qualified distinction plays an important role depending on a job’s teaching status. If an alien is offered a job that does not contain a teaching component, then the alien will be subject to the minimally qualified requirement, in which the employer must prove that there is no qualified U.S. worker available to accept the job offer. But if an alien is offered a teaching position at an institution of higher education then the “more qualified” standard is used.
Regular, non-teaching PERM positions use the “minimally qualified” standard. A qualified U.S. worker means any U.S. worker who meets or exceeds the minimum requirements of education and experiences as stated in the PERM application. Unfortunately, this means that if even one interested, able, and available U.S. worker meets the minimum requirements for the offered position, the labor certification application will be denied even if the alien is the most qualified person for the offered position.
If a PERM is being filed for an alien in a teaching position, then the position will be subject to the “more qualified” standard. In this standard, the application for labor certification can be approved if it is shown that there are no U.S. workers who are at least as qualified for a position when compared to the alien teacher. Therefore, the application can be approved even if several U.S. workers meet the minimum requirements for the offered position but none are equally as qualified as the alien. In other words, if the alien teacher is found to be more qualified (i.e. more skilled and experienced) than any of the U.S. workers who apply for the job, the labor certification should be approved by the DOL. If a U.S. worker applicant is found to be as qualified as the alien then the PERM petition will be denied.
John and Jen are both from India and have received two positions at Ohio State University. John will be an assistant professor in the Business school, while Jen has received a position as a post-doctoral researcher in the Psychology Department. John’s position involves teaching classes and research, whereas Jen’s position is simply a research position. John will be subject to the “more qualified” standard since his job requires him to teach. Therefore, if John is found to be more qualified than any US workers who want the same position his LC will be approvable. Jen will be subject to the “minimally qualified” standard. Jen’s position must have no minimally qualified US worker applicants willing to take the job in order for her Labor Certification to be approvable.
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