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Joel Stewart on PERM Labor Certification

Gaining Education, Training & Experience On the Job

Rating: 8 votes, 5.00 average.

A colleague called me recently to discuss an issue about education gained on the job. The alien had been hired by the employer with a Bachelor's Degree and no prior experience. Now the alien would be offered a different position requiring a Master's Degree and two years experience. The two years experience were gained with the employer, and the employer paid for the Master's Degree which the alien obtained during those same two years. To start with, I reviewed the regulatory requirement for experience gained on the job {656.17(i)(3)(i)}. It states that the Employer cannot require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless "the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is being sought...." The regulation goes on to define "substantially comparable" to mean a job or position requiring performance of the same job duties more than 50 percent of the time" and that "this requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records." Next, the two positions must be defined. By different job or position, I might take into consideration the O*Net occupation Code numbers. If the numbers are different, this might gives rise to the inference that the jobs are different. However, the Regulation are very specific on this point, and requires that the jobs not be "substantially comparable. " It does not say anything about the O*Net codes being different. The regulation provides a test for us, i.e., the job duties must not be substantially comparable "more than 50 percent of the time." " However, the real question posed by my colleague was not about the work experience, but about the education requirement. He wanted to know what would be the result if the Employer payed for the Master's Degree, given that question J-22 on the PERM form states, "Did the Employer pay for any of the alien's education or training necessary to satisfy any of the employer's job requirements for the position?" Here in question 22, it refers to "education or training," while in question J-21 it states, "Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?" Accordingly, it appears that the requirement that the jobs not be substantially comparable refers only to the issue of experience gained on the job and not to education or training gained while on the job. When the education or training was gained on while on the job, the regulation that controls is 656.17(4), "In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants." Since the PERM form does not have a box or place to write or document the offer of similar education or training to domestic worker applicants, it is assumed that this documentation could only be provided during an audit triggered by a "yes" answer to J-22. While the PERM form does not appear to take into consideration cases where the alien paid for his or her own education or training while working on the job, I believe that in such cases, if the alien qualifies for the new job because of education gained while working on the old job, the educational requirement could be considered restrictive under the same regulation as training or experience gained on the job, depending on the interpretation of the word "training." In the phrase, "The Employer cannot require domestic applicants to possess training and/or experience beyond what the alien possessed at the time of hire," if "training" means "education" then the same rule would apply for both education and experience, and the Employer would have to prove that the job at time of hire, and that the later acquired job, offered after after the alien obtained a Master's Degree, are substantially dissimilar. The problem is that the PERM rule does not clearly define the word "training." Furthermore, where the term "training" occurs, it flip flops between the meaning "education" and "experience." Because of the inherent vagueness of the term "training," in different  situations might mean education, apprenticeship, unpaid (volunteer) experience, unpaid work-study, practice work or study while receiving a stipend, and traditional (paid) experience. In the PERM rule, it might mean any of the above. On the other hand, if the alien is working for the Employer in Job A, and pays for his or her own education, thereby qualifying for Job B with the same Employer, it seems fair to say that there is no reason to exclude the alien from consideration as a qualified worker for the new job.

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Comments

  1. JC's Avatar
    About the following statement:

    "...DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants."

    Presumably, a company-wide tuition reimbursement program that is available to every employee who fits certain criteria, would meet the requirement in your statment, correct? So even if the worker availed himself of this program for a (small) portion of a masters degree cost, they could still be considered as having paid for their own education, for the purposes of satisfying what you offer in your last sentence. By taking some tuition reimbursement the alien is simply making use of benefits associated with employment that are available to every employee no matter their status.

    Thoughts?

    JC
  2. Joel Stewart's Avatar
    If the tuition reimbursement program is offered fair and across the board to all workers, not only to the alien, there should be no problem for a PERM approval. However, you should be expected to provide documentation during an audit.

    Under these circumstances, it appears that the Employer need not prove that the new job is not substantially similar, i.e., more than 50% of the job duties are dissimilar.

    However, due to some ambiguities in the word "training" throughout the PERM rule, one might expect a challenge on this basis from time to time. The challenge would be that the word "training" includes education.

    If the only issue is education offered to all workers, as in the question below, and not experience, the "substantially similar" rule should not apply.

    Unfortunately the word "training" is ambiguously applied in the PERM Rule. Sometimes it means "education" and sometimes it means "experience."

    To avoid any possible repercussion, it is recommended that positions offered with any kind of education, training or experience gained AFTER beginning work with the employer not be substantially similar.

    Sincerely,

    JS
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