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14 April 2017
A little-known requirement in the Programme Electronic Review Management (PERM) rule states that employers must offer to train job applicants if they can acquire the education, training, experience and skills necessary to perform the required duties in a reasonable period. While deference is given to the employer, whose judgement is the best arbiter of such matters, government policy regarding the required duties themselves is ambiguous.
To be fair to US workers, job requirements are strictly regulated by government standards in official publications. Employers must look to the online job catalogue O*Net, which in turn is based on normal training requirements detailed in the Standard Occupational Code (SOC). The SOC was introduced in 1998 and conflated the approximately 12,000 occupations that had previously existed under the Dictionary of Occupational Titles (DOT) into 23 major occupational groups and approximately 1,000 detailed occupations.
The DOT was the bible of employment immigration practice for many years and its data pertaining to the continuously changing job requirements for all 12,000 jobs then known to exist in the United States was unquestioned. The procedures used to determine this data included typical surveys of US employers to determine their normal requirements. However, the results of these surveys were often at odds with reality, and DOT Supervisor Stanley Rose admitted that many of the job requirement summaries were educated guesses.
Although the DOT team comprised dedicated and well-intentioned professionals, the lesson to be learned is that statistics used in the foreign labour certification programme cannot be expected to be 100% correct. This is relevant to question H-12 on PERM ETA Form 9089, which asks:
"12. Are the job opportunity's requirements normal for the occupation?
If the answer to this question is No, the employer must be prepared to provide documentation demonstrating that the job requirements are supported by business necessity."
If the employer answers "no" to the above question, an audit may be triggered and denial of certification may ensue. However, if the employer answers "yes", but the Department of Labour statistics do not support the employer's conclusion, this may also trigger an audit and denial.
Employers should thus tread carefully and be aware that while there are 'real world' occupations and training requirements, the PERM world operates as a parallel universe.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
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