What do H-1B's and PERM cases have in common?

Very little!

H-1B's are temporary work visas offered to aliens whom Employers choose and prefer to hire. H-1B employers may choose any qualified aliens whom they wish with any set of requirements they need or prefer.

By contrast, PERM cases represent the minimum requirements of the Employer, not the preferred qualifications, because it is well established that in labor certification proceedings, the employer can only require minimum requirements and not stipulate preferred qualifications like "Top 10% of the Class." Instead, PERM Employers must accept mediocre (minimally qualified) US workers. If a Bachelor's Degree is required, the Employer must accept applicants even if they are in the bottom 10% of the class unless the Employer can document that they cannot perform the job duties.

It should not follow that PERM requirements must always be the same as H-1B requirements. H-1B positions and PERM positions may be jobs with two different sets of requirements and, accordingly, with two different sets of salaries. As minimum requirements move from minimal to higher standards, salaries increase.

Thus, the Employer may hire an alien with a Master's Degree from the top 10% of his class as a Market Research Analyst for an H-1B visa, but if a PERM case is then filed for the same alien, the requirements would have to be lowered to meet O*Net standards, i.e., to include any candidate who meet rock-bottom, minimal requirements.

With a lower set of minimum requirements, the salary for PERM cases may be lower than the salary in the H-1B case. The difference in salary paid to the alien may be offered as a wage range, where the lowest salary will match the lowest set of requirements (as in the PERM application) and the higher salary will match the higher set of requirements (as in the H-1B application). As explained in a previous blog posting, it appears that the alien may earn more than the higher end of the prevailing wage range, if the alien's seniority and experience already transcend the range of minimum requirements and corresponding wage range. See the blog posting below on the topic of prevailing wage.

If a degree is required for the H-1B visa, it need not be required for the PERM case, even if the job duties are identical. While a degree or its equivalent is required for an H-1B visa, and the employer may stipulate that degree as a preference, whether it be a bachelor's degree, a master's degree or a doctorate degree, the PERM job, in reality, must be offered to anyone who meets the minimum O*Net requirements. Accordingly, in the PERM case, the O*Net stipulates the minimum requirements and not the Employer. Since only the last two years of a Bachelor's Degree count as SVP for a PERM case and a full, four-year degree is required for an H-1B, the PERM case may arguably be offered to the same alien on the basis of two years of post-secondary education, whereas the alien is currently working on an H-1B offered to him or her because of higher educational qualifications such as a Master's or even a Ph.D. Since the SWA determines the prevailing wage, the wages for the PERM case would probably be lower than for the corresponding H-1B case. For example, if the H-1B stipulates a full, four-year Bachelor's Degree, Master's Degree, or higher, and the O*Net stipulates two years of post secondary education in marketing or two years of experience in the job offered, the SWA would calculate the wages for the H-1B based on the Degree preferred by the Employer and would then calculate the wages for the PERM case based on two years post-secondary experience, without factoring in the H-1B wage increment for a Bachelor's or Master's Degree requirement.

Since Employers' requirements must be mininum for a PERM case, salaries for PERM cases may be lower than salaries offered to H-1B workers, simply because the govenment requires the Employer to offer PERM jobs at minimal requirements. The same job commans two sets of requirements -- a real world, employer-driven set of requirements for H-1B workers (and for real workers in the real world), and a government-driven set of mediocre requirements for worker applying under PERM.

In conclusion, the requirements for an H-1B are born out of the Employer's interest in bringing highly qualified workers to the workplace, presumably to gain a competivie advantage, while the requirements for PERM case are determined by government O*Net zones at minimal levels. Under the O*Net, even marginally qualified candidates must be considered as fully qualified to perform job duties in PERM cases.

Stated in other words, the less qualified you are, the more likely you are to meet PERM requirements and get an application approved! At the very high end of the range, of course, aliens may qualify for first or second preference petition as exceptional or extraordinary aliens. The anomaly is an inconvenience for employers who seek to employ aliens who are more than minimally qualified and less than truly exceptional or extraordinary.

Comments

[Joel Stewart]

Response from Joel Stewart:

It sounds like you are on the right track. YOur client is legal, currently working in the US in a professional position, and will apply for permanent residency through a PERM application. There are multiple accounting positions, including in-house, which does not require licensed accountant status, and if the client has at least five years of progressive experience, she should qualify for second preference as a person holding an advanced degree or a Bachelor's Degree plus five years experience. You should follow the suggestions for processing in The PERM Book, and as a friendly reminder, since your client is working for the Employer, don't forget the Magic Language in Item 14! Since this your first case, I suggest you fill out form 9089 and send it to me for review.

Best wishes!

JS

[Vicenta Rodriguez]

Mr. Stewart, I attended you PERM seminar in Houston and I have a question. I currently have a prospect customer who has an approved H-1B, approval notice (I-129) is valid until 1/26/2009 (this is the second renewal). Her employer would like to file a Labor Certification for her. My questions are 1) Is this possible? 2) If so, do I follow the steps in your PERM book? The position is an Accountant, to perform General Accounting. She has a BA in Mexico and has worked with this company since 2004. Note, I am new at this and I really want to get my feet wet when it comes to PERM, but I also do not like to go into a case blindsided. Please provide guidance as to where I should begin. Your assistance is greatly appreciated.