PERM Question J-11 and Alternative Requirements
An attorney referred a question that has been puzzling many of the experts.
The problem is this:
An Employer filed a PERM application electronically for a Market Research Analyst.
The primary Requirements on Form 9089 were a Master's degree in H-4 and no experience in H-6. The Employer also indicated that it would accept as alternative requirements a Bachelor's Degree in H-8-A plus Five years experience (60 months) in H-8-B. This pattern of requirements has been used frequently by practitioners in pre-PERM and in PERM cases routinely resulting in approvals by the Department of Labor.
In this case, the Employer correctly answered Question J-11 (Alien's Highest Educational Achievement) by indicating that the alien has obtained a Bachelor's Degree.
At this point, a pop-up warning appeared which stated that the application may be denied, because the alien does not possess the minimum educational requirement of a Master's Degree.
The alien DOES possess the minimum educational requirement of a Bachelor's Degree as expressed in the alternate education part of the form and under the PERM Rule, a job applicant may qualify by the Primary or Alternative requirements.
Since the Employer could not find anything legally wrong with the application, it continued with the filing process, and a denial was received 5 days later.
The denial stated, "An invalid selection of "Bachelor's" was made for Section J-11, Education: highest level achieved is less than the job education: minimum level of "Master's" required. Therefore, per 656.17(a), this application is denied."
The pop-up warning and the denial are vague because they do not properly explain what the problem is. The experts I contacted stated that they could only guess about the DOL's intentions, and each one offered a different opinion.
One possibility is that the DOL is broadening its FAQ which states official policy regarding prevailing wage requests. When making such requests, DÖL requires that the primary requirements be used, not the alternative requirements.
Another possibility might be that this is a Kellogg issue, i.e., whether the primary and alternate requirements are substantially similar.
Several experts stated that they had similar but inconsistent experiences in the past, but without a pop-up warning, and that when they placed the primary requirements in the alternative, and the alternative requirements in the primary, the applications were approved.
Another expert stated that he agreed with the denial, since the alien did not meet the primary requirement of a Master's Degree, however, the process permits an alien or US worker to qualify by alternative requirements, so it is unclear why an alien would be considered unqualified even though qualifying for the alternate requirements.
If the real issue is whether the alternate requirements are equivalent, the denial should be stated in those terms, and not with a vague statement that the alien does not qualify, and one of the experts stated that this would be a good issue to raise by appeal to Federal Court under the Administrative Procedure Act.
If any of our readers have suggestions, ideas or experience with this problem, kindly submit them and I will add them to our "think tank" on this issue.