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  1. PERM: Employers May Not Seek Highly Qualified Employees

    by , 01-16-2012 at 10:23 AM (Joel Stewart on PERM Labor Certification)
    I frequently receive questions about qualifications and requirements stipulated for job opportunities.  Often, the Employer wants a highly qualified person with years of experience, education, training, and special qualifications as well.
    The fact is that each job in the United States is listed in the O*Net and the government stipulates the level of training permitted for the job.  Their point of view is that only minimally qualified job applicants are needed, and that applicants should be selected from a pool of American workers. If American workers are not as qualified as foreign workers, Employers must hire the US workers and train them or accept an inferior level of performance.
    Another way of understanding this is that the government is not concerned with the Employer's desire or preference to have the best possible employees but only to reduce unemployment with the placement of minimally qualified US workers to perform the job functions.
    If you want to know more about the government's standard, you can visit a government office, where you will more often fine minimally qualified workers than highly qualified ones. The standards between government and private enterprise are different, but the government standards apply to private enterprise In PERM cases, so that private employer must adapt themselves to the lower, government standards.
    In a specific case, the Employer requested a Vice President of Strategic Accounts, requiring an MBA with a major in Agribusiness or related fields or its foreign equivalent and 3-10 years experience.
    To determine if this is permitted, you might start by looking at the SOC Code on the O*Net and the Job Zone Level.  Such a position might be classified as Financial Manager, Branch or Department, SOC Code 11-3031.02. This and similar occupations usually have Job Zone Levels Four, meaning that the Employer may require a maximum of four years training time, including education, training and experience
    The Bachelor's Degree counts as two years training time (not four) because only the last two years of the bachelor's program is specific to a career or profession.  The Master's Degree also counts as two years.  Two plus two makes four. 
    Logically, if the maximum training time is "Four," then the Employer may not require any experience in addition to the Master's Degree.  However, if the Employer accepts a Bachelor's Degree, which represents only two years of preparation time, instead of a Master's Degree, then the Employer may add a requirement of two years experience.  Again, two plus two makes four.
    If the Employer requests a Master's Degree plus 3-10 years experience, this would be a different equation. Four plus three or four plus ten is greatly in excess of two plus two.
    One solution might be to use a job classification in Job Zone Level Five, which permits up to 10 years of preparation time -- although even then, the master's plus 10 years of experience would amount to fourteen years of training time, greatly in excess of the government standard.
    Employers may include requirements in excess of the minimum normally permitted, but they have to expect an audit, requiring them to justify the "excessive" preparation time by showing business necessity.
    Some American employers do not understand the intricacies of the labor certification regulations and insist on a higher set of requirements. If the attorneys acquiesce, their clients may put the higher than recommended requirements on the PERM form.
    As a general norm, an audit will be expected.  Employers should remember that an audit may take several years to resolve, so for expeditious decisions, employers should try conform their applications to the minimum preparation time proposed by the DOL.



    by , 01-16-2012 at 06:29 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    During most of the 2000s, internationally trained nurses made up about 10-15% of all new RNs that came on-line in the US. These numbers disappeared with the onset of retrogression in January 2008. The retrogression, now in its fourth year, has eviscerated the number of foreign-trained RNs.

    In 2008, about 51,373 internationally educated RNs passed the NCLEX exam. In 2011, that number has been more than halved to 23,266, a drop of about 28,000. Fortunately for US healthcare users, US-educated RNs have filled half of the gap; about 14,000 more US-educated nurses now take the NCLEX-RN then did in 2008.

    While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. By the end of the decade the US could be short 250,000 to 1 million nurses, depending on whose estimates you read.

    NCLEX-RN Test Takers

    US Educated
    Int'l Educated





    Source: NCSBN Fact Sheets

    Read the full Healthcare and Immigration Law Blog at or

  3. Letters of the Week: Jan 16 - Jan 20

    Please email your letters to or post them directly as "Comment" below.
  4. Despite Prosecutorial Discretion Policy, Same Sex Spouses of US Citizens Still Facing Deportation

    by , 01-13-2012 at 08:53 AM (Greg Siskind on Immigration Law and Policy)
    These should be the easy cases to take out of the deportation queue (assuming there are no criminal issues). Congress still has not righted this wrong and we're still waiting on the courts to declare the offensive Defense of Marriage Act unconstitutional. In the meantime, the White House still is preventing spouses from getting green cards. They do have the option of at least stopping deportation proceedings in all these cases under the new prosecutorial discretion policy. So why is this still happening?
    The Denver Post reports on one such couple facing removal.
  5. Another Same Sex Spouse Faces Deportation due to Defense of Marriage Act

    by , 01-13-2012 at 06:27 AM (Matthew Kolken on Deportation And Removal)
    The love story began in April 1990 at a birthday party, which the couple describes as "love at first sight."  One worked at the Pennsylvania State System of Higher Education, the other a university student.  This first meeting turned into a whirlwind romance spanning decades and two continents. The couple ultimate wed in California in 2008, and now have four adopted children.

    Unfortunately, there may not be a storybook ending for United States citizen Mark Himes and his French national husband Frederic Deloizy.  Despite the fact that the couple's marriage is valid in the State of California, Deloizy is ineligible to receive any immigration benefits from his United States citizen spouse, and as such he may be just one more faceless statistic in the Obama administration's 400,000 deportations per year mandate.
    Mark and Frederic's marriage faces the prospect of destruction, not because of the "broken immigration laws," but due to the Obama administration's continued enforcement of the Defense of Marriage Act (DOMA) in the immigration context. In fact, if Frederic were a woman there would be nothing to worry about, and the Green Card process would be fairly straight forward.  
    DOMA prohibits the Federal recognition of same-sex marriages, further providing that States are not required to recognize same sex marriages.  DOMA was signed into law in 1996 by a Democrat (President Bill Clinton) who is a proponent of gay rights.  Democrat Barack Obama continues to enforce DOMA against immigrants married to United States citizens.  This enforcement continues despite the fact that both the President and his Attorney General have stated that it is unconstitutional, and that it should not be enforced in Federal Court.  
    To paraphrase: With Democrats like these who needs Republicans.
    The painful irony is that even Dick Chaney openly opposes DOMA, making him more progressive than either Clinton and Obama on the issue.  Only now that the President is seeking reelection has Obama's view on gay marriage "evolved."  It seems pretty clear to me that Obama's evolution is in spoken word, and not in deed.
    More disappointments from the Lipservicer-in-Chief.
    Thankfully, has given this couple a voice so that the Obama Administration will be shamed into doing the right thing. It is an election year after all.
    Click here for the source for this story.
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