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Joel Stewart on PERM Labor Certification

BALCA Rules on Education Gained with the Employer

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Once again a BALCA panel has held that foreign workers cannot use education gained on the job to meet the minimum requirements of a PERM job offer. The overall rationale is that if the foreign worker did not have the necessary educational qualifications before beginning to work for the employer, it would be unfair to require that of U.S. workers. See Inteliops, Inc., 2012-PER-1099 (March 25, 2016).

To understand how the subtleties of this rule work, employers should review 20 CFR sections 656.17(i)(1)-(5).

In 656.17(i)(1), the rule states that job requirements must represent the employer's actual minimum requirements for the job opportunity. Employers cannot "treat the alien more favorably than it would a U.S. worker" by adding more stringent qualifications for U.S. job applicants.

In 656.17(i)(2)), the rule warns that employers "must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity." Note that this rule only applies to jobs that are substantially comparable and that the word education is not included together with experience and training.

In 656.17(ii)(3), the rule continues, "If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee." The word "education" is also omitted in this section.

In 656.17(i)(4), a different situation is presented, "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." Here the Rule appears to recognize education gained on the job, as long as the same opportunity was offered to U.S. workers and, if payment for education was provided, it should have been offered to all workers, not just to the foreign worker. A literal reading of this section allows that employers are permitted to use education gained on the job because, while the rule includes experience and training, it excludes education.

In Section 656.17(i)(5), the rule explains that two positions are considered to be substantially similar if they require performance of the same job duties "more than 50 percent of the time." Employers may distinguish between two jobs and show that they are ​not substantially similar by using a spread sheet to compare the job duties, percentage of time spent in each, and other factors such as supervisory duties.

In a number of BALCA decisions, the issue of on-the-job education has become muddled, because if the PERM job offer is for the same position for which the alien qualified when first hired, the minimum requirements could not include after-acquired education without discriminating against US workers who were not given the same opportunity. This would be a violation of the above sections 656.17(i)(1)-(3).

A different situation is presented, if the alien is promoted by the employer to a different position with a new set of requirements, including education gained on the job. This fact pattern occurs when recent college graduates gain work experience in practical training or H1-B status, or where foreign workers accept an entry level position and then want to bump up to 2nd preference after earning a master's degree or a bachelor's plus five years of progressive experience.

While the PERM rule contain contradictions relating to education gained on the job, BALCA has held that the "actual minimum requirement rule" trumps the "gained education on the job rule" and prohibits the use of educational qualifications gained on the job to qualify for a new job.

There is an exception, however, for job offers that are not substantially similar to the job currently held by the alien, or where infeasibility to train may be shown. In these cases, DOL policy would allow education gained on the job to be used as a minimum requirement for PERM.

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Updated 04-15-2016 at 12:16 AM by JStewart

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