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Joel Stewart on PERM Labor Certification

PERM: What are equivalent, alternate requirements?

Rating: 27 votes, 5.00 average.

I was listening to a tape from the DOL presentation to the national AILA Conference from 2010, and I began to sympathize with the difficulty the certifying officer may experience to make certain kinds of findings.


For example, on the issue of identifying the equivalence of a Bachelor's Degree, the speaker stated that DOL has received PERM applications with a wide gamut of equivalencies. Employers have filled the alternate requirement (experience) box with one year, two years, three years, four years, etc., up to 12 years. Employers also sometimes stipulate a Bachelor's Degree equivalence to be a high school diploma,  two years of post-secondary education, an AA diploma, a Master's Degree, or even a Ph.D.


They can't all be equivalent, can they?


Quantitatively speaking, a Bachelor's Degree could be equivalent to two years work experience or an Associate's Degree, or two years of post secondary education, or two years of training, if you apply the SVP test to determine equivalent preparation time.


Equivalency can also be described in a qualitative, not quantitative manner. By borrowing on the H-1B model, an Employer might find that a Bachelor's Degree is equivalent to more than two years work experience, for example, 12 years of progressive experience. However, the H-1B standard is not applied by DOL.


In other situations, a program of training, study, or internship, could be defined in an anomalous way to be equivalent to a Bachelor's Degree, like a 3 year nursing program, or a six-year work study program.


It is clear that there is no bright line test to determine equivalencies. The DOL claims that they try to use a common sense approach, so when a colleague submitted a question to me this week about a failed request for Prevailing Wage, I decided to use a common sense approach to see how it would work.


The Employer received the following comment from DOL:


"The deficiencies are: This 9141 was submitted on the behalf of the Requestor care of the iCERT portal. The 9141 yielded the omitted mandatory, incorrect or vague information. The 9141 will move forward as an RFI. The deficiencies are: Alternative Edu & Exp requirements are currently listed. Per Section D.B.1 (Minimum Job Req's) education is populated as BA. Section D.b.1a (if "Other Degree" in Q1...) is populated as MA. Section D.b.5 (Special Req's) is populated as BA/8 years of exp or MA/3 year's exp. Please respond with one set of education and exp requirements."


To translate this PERM-speak into plain English, it appears that the Employer (through its attorney) submitted multiple incongruous requirements such as (1) a Bachelor's Degree, (2) a Master's Degree, (3) a Bachelor's Degree plus 8 years of experience, or (4) a Master's Degree plus 3 years experience.


Now apply common sense: the Employer probably wanted to state that it required a Master's Degree (to enable the applicant to apply for 2nd Preference), but since the alien did not have a Master's Degree, the employer included the requirement of a Bachelor's Degree as an alternative.


Then the Employer went on to add an experience component. Hence the result:  a Bachelor's Degree plus 8 years experience or a Master's Degree plus 3 years experience.


At first glance the requirements seem impermissible, because a Bachelor's Degree plus 8 years experience is 10 years SVP, and a Master's Degree plus 3 years experience is 5 years SVP.


However, using the common sense approach,  you subtract the employer's requirement of 3 years experience from the employer's requirement of 8 years experience. This difference is 5 years experience, which happens to equal the amount of experience that can be added to a Bachelor's Degree to obtain the equivalence for second preference.


One may then conclude that the Employer inadvertently added 5 plus 3 to obtain 8.


Now apply the Kellogg rule (permissible equivalence test).  The Employer would stipulate a Master's plus 3 or alternatively a Bachelor's plus five, a harmonious combination when following the SVP equivalence rule. However, employers may also generally require a Master's or Bachelor's plus five, if following the qualitative equivalence rule.


Don't forget the finishing touch is to put the Kellogg magic language on Form 9089 in Box H-14:  "Employer will accept any suitable combination of education, training or experience,"

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