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Joel Stewart on PERM Labor Certification

Foreign Equivalencies

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Question & Answer:

Question: Can you please give an opinion as to the viability of the DOL accepting the employer's requirement that an applicant for a proffered job have at a minimum a "U.S. Bachelor's Degree" -- meaning the Employer will not consider foreign equivalency. (No employees have foreign bachelor's degrees). P.S. I love your BALCA summaries.

Answer: The Employer sets the requirements, not the DOL. There are limits and restrictions, of course, but they address the issue of minimum requirements, i.e., the requirements have to be minimum and must be normal in the U.S. The DOL permits Employers to add foreign equivalencies without special justification or documentation, and the PERM form clarifies this by providing a special question to this effect in Question H-9-A. "Is a foreign educational equivalent acceptable." If the Employer answers yes, it is broadening the field of applicants to include workers trained abroad. Conversely, if the Employer checks "No" to the same question, the Employer is limiting the field of applicants to include only workers who are trained in the U.S. As between the two, arguments can be made as to which is more or less restrictive.

My own view is that the position you take, to limit the pool of workers to those with an American diploma, is more in line with the DOL's philosophy to trim the job to its minimum requirements and give preference to American workers. The other option, to include foreign diplomas, broadens the minimum requirements, but appears to have as its purpose to include foreign-trained workers, i.e., foreigners! In your hypothesis, the Employer can require a Bachelor's Degree, because it is normal in the U.S. and should answer "No" to Item H-9.

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