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Joel Stewart on PERM Labor Certification

Special Requirements Not Welcome

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The US Department of Labor (DOL) has long held the belief thatemployers should not recruit for jobs requiring special skills or licenses if USworkers are available who could be easily trained. The DOL perspective on a trainingrequirement is not absolute, as long as employers can show that the on-the-jobtraining is not possible in a reasonable period of time.

The DOL accepts plausibleexplanations from employers who can demonstrate that it may take a great dealof time or expense to train someone who does not possess a special skill.

Employers often determine theability to perform the skill based on information listed in resumes of jobapplicants and reject workers because they did not appear to possess thoseskills. However, the rule is that US workers who apply jobs should not berejected on the basis of their resume alone, because they might qualify basedon some other combination of experience, education, or training.

To successfully defend specialskill requirements, employers can show businessnecessity, i.e., by demonstrating that the job requirements are essential toperform the job duties.

As a matter oflaw, the employer’s assessment of its own requirements and of candidates’abilities to perform job duties with special skills takes priority over theopinion of the Department of Labor, since employers are the ones most qualifiedto make those decisions.

In recent months,DOL has denied cases where job skills are not quantified, in part because theycannot be properly measured.

The matter hasbeen raised at meetings between the US Department of Labor, attorneys andemployers, with the result that guidance will soon be published regarding theproper way to list special skills in job offers.

A related issue isthatoften, when no quantification ofskill requirements is provided, the government simply concludes that jobapplicants (including the foreign worker beneficiary of the PERM application)need to prove that they worked with those skills throughout the entire periodof minimum experience required in the job offer.

Sometimes workersmay acquire skills in intangible way, such as through special hobbies,interests or life experiences. The important issue in these types of skillacquisition is not the quantification of how long or by what means a person acquiredthe skill, but simply whether the person possesses the necessary skill and howthe employer will determine that fact.

Employers shouldbe aware that it is difficult to assert that job applicants are unqualified toperform a specific job if details of skill requirements are not clearly stated inthe job offer and if job applicants are not interviewed to determine if theyare qualified -- even when their resumes do not clearly indicate that they possessthe necessary, special skills.

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