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Joel Stewart on PERM Labor Certification

Is PERM Experience, Education, and Training Conjunctive or Disjunctive?

Rating: 3 votes, 5.00 average.

Last week an employer wrote that he received a denial, because he did not know the best way to fill out the PERM 9089 form, when its requirements for the position were described in the disjunctive (2 years experience, education or training) and not in the conjunctive (2 years experience, education and training).


The employer correctly deduced that the PERM form 9089 is defective in this regard, because the form provides boxes to put requirements such as experience, education or training, but does not have any way to indicate that they are not cumulative.


The employer also noted that it could not explain these  requirements under the heading "Alternate Requirements" or "Alternate Occupation."


The "Alternate Requirements" part of the form only provides boxes for education and experience, but not for training, so the Employer could not use this box to put all three options.


And the Alternate Occupation box does not distinguish between education, experience or training.


The employer came to the conclusion that that since there was no way to put "or" between the items,  if all three were filled in, they would have totaled six years, instead of two, and this would have exceeded the permissible SVP of two years total education, experience and training. Therefore, the employer opted to leave the first three boxes blank.


The Employer then wrote  in box H-14 that the two years could be education, OR experience, OR training.


I asked several colleagues how they would have filled out the form, and there was some disagreement among them, but I think the best advice to the employer would have been to put two years experience in the experience box instead of leaving it blank, and to put nothing in the training and education boxex, and then skip to H-14 where the employer could have written "Any combination of education, training or experience totaling two years is acceptable." 


Another option would have been to put two years in each of the three boxes (education, training and experience) and then explain the "or" in H-14 by using the same language indicated above.


This option would be "safer" in the sense that the additional "or" requirements of training and education would have been more clearly stated on the form, but this approach might have resulted in an audit, due to the initial reading by the computer that the total requirements listed were six years SVP. Only after closely examining the form, would it have  become apparent in H-14 that the requirements  actually totaled two years of SVP, not six.


Although the phrase  "Any combination of education, training or experience totaling two years is acceptable" is the gist of the Kellogg rationale and is codified in the Magic language, in this case the phrase also serves the purpose of stipulating the "or" option, which is otherwise unavailable on the Form 9089.


Of course, the new PERM Form is on its way (not yet approved for use), and should resolve the situation, since it has more options for "training" than the original form, which is still in use!


 

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