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Joel Stewart on PERM Labor Certification

PERM: Employers May Not Seek Highly Qualified Employees

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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.



 



 

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