How to List Licenses, Training and Other Requisites on the PERM Form
By now everyone knows that when the Employer has special requirements, they may be put in Box H-14, and that the PERM Form 9089 failed to include a page or box to put down the special qualifications acquired by the alien such as licensure, training, certificates and the like.
For almost ten years (the PERM program began on March 28, 2005) employers simply submitted proof of the alien's qualifications with the I-140 Immigrant Visa Petition. However, on occasion the lack of alien qualifications resulted in a denial under the theory that DOL should not approve a PERM application on behalf of an alien who does not demonstrate on the face of the application that he or she is qualified with a statement placed somewhere on the form.
The DOL stated publicly on numerous occasions that Employers had to put evidence of qualifications somewhere on the form, presumably in Part K-9. The method recommended was simply to state clearly in an existing job entry in K-9 the acquisition of the skill - a description, a date, and any other relevant details.
This plan worked well for Employers who knew that they had an obligation to present the information on the form but did not work well for the others who followed the PERM instructions but omitted the information not specifically instructed and therefore received denials stating that the alien appeared unqualified for the position for not having acquired the skill.
DOL accommodated those unlucky employer by allowing them to provide the missing documentation in the form of a request for reconsideration in the government error queue. Approvals were then issued.
But as complaints from the immigration bar mounted, DOL responded with an FAQ which provided guidance on how to enter the acquisition of a skill in Part K-9. As the fields on form 9089 in Part K-9 intended to document periods of employment do not correspond well with the fields logically necessary to list skill acquisition, the FAQ recommendation resembles a hodge-podge of blank or partially empty fields and confusing, irrelevant pull-down menus with the result that employers are sorely challenged to provide a seamless response that will meet the requirements of PERM's Zero Tolerance for errors on the form.
As a matter of law, the FAQ only provides guidance (and it is questionable whether this FAQ presents the best guidance available) leaving us to wonder if there is a better way.
The time honored way is to simply write the training or licensure anywhere in K-9, and possibly write in H-14 a reference to look at K-9 for further information regarding acquisition of the skill. For example, if the job requires a real estate license, the employer could write in H-14, "Real Estate Sales License Required," and under that (but still in H-14), "Alien acquired Real Estate Sales License, See K-9". Then in K-9 (in the job experience box for the appropriate time frame) the Employer could state clearly that the alien acquired the license, where, when.
Employers are advised by DOL to follow the FAQ (which is not a regulation but only guidance) and most will want to follow the FAQ for fear of running afoul of procedures recommended by the agency, while other employers report they will continue to list acquisition of special qualifications the old fashioned way, as explained in the above paragraph.
The FAQ may be viewed at http://www.foreignlaborcert.doleta.g...ers.cfm#alien8.