Allowing On-The-Job Experience: How PERM Has Modified The Delitizer Standard
As widely reported, on December 27, 2004, the Department of Labor (“DOL”) published the final regulation for PERM, the long awaited procedure established to streamline the labor certification application process for the permanent employment of aliens in the United States. The proposed rule suggested that PERM would eliminate many of the old doctrines governing labor certification. The final rule, however, retains most of those doctrines, but with some modifications. This article examines the modification made to the doctrine allowing employers to consider as part of actual minimum requirements, on-the-job experience gained by the alien while working for the same employer.
II. The Old Standard: Delitizer and its Progeny
Under PERM and under the old rule, the job requirements described on the labor certification application must be the actual minimum requirements, and a worker cannot be hired if he/she has less training or experience than those minimum requirements. When determining whether a worker has the required minimum experience for the job, an employer cannot consider a worker’s on-the-job experience with the same employer. There are, however, limited exceptions where an employer can consider such experience. One of the more utilized exceptions under the old rule was established by BALCA in Delitizer Corp of Newton (88-INA-482, May 9, 1990).
In Delitizer, BALCA reiterated the rule established in Brent-Wood Products, Inc., 880INA-259 (February 28, 1989) that on-the-job experience can be used if the position offered for certification is “dissimilar” to the position in which the alien gained the minimum requirements. Delitizer at 4. Delitizer rejected the notion that DOT codes and different job duties alone are enough to show dissimilarity. Id. Instead, it asserted that Certifying Officers should consider a wide range of factors when making a dissimilarity determination. These factors include: “relative job duties and supervisory responsibilities, job requirements, the positions of the jobs in the employer’s job hierarchy, whether and by whom the position was filled previously, whether the position is newly created, the prior employment practices of the employer regarding the relative positions, the amount or percentage of time spent performing each job duty in each job and the job salaries.” Delitizer, at 5.
The cases following Delitizer give employers some clarity about when dissimilarity can and cannot be demonstrated. In Matter of Yamasho, Inc, 89-INA-204, 3 (BALCA 1990), BALCA held that “de minimus supervisory responsibilities are not sufficient standing alone that two jobs are not similar.” There, on-the-job experience as a Service Engineer was not allowed for the position of Service Manager. After reviewing the job descriptions, BALCA held that the jobs were similar because the only difference was that one involved supervision of three employees and the other did not.
In Matter of Paradise Produce, Inc, 90-INA-463 (BALCA Apr. 30, 1992), BALCA held that the positions of a Salesman of exotic fruits and vegetables was dissimilar from the position of Sales Manager of exotic fruits and vegetables because two of the Delitizer factors were involved. First, BALCA looked to the different job duties/ responsibilities and determined they were “qualitatively different.” Id. at 3. Second, BALCA looked to the supervisory responsibilities and noted that the position of Sales Manager involved supervision of four employees where as the position of Salesman did not. Id.
BALCA, in Matter of Deloite and Touche, 90-INA-493 (BALCA Feb. 7, 1992), found that the positions of associate consultant and senior consultants were dissimilar. Factors it considered included the complexity of the positions, the different job requirements, the different salaries, and the placement of the two jobs in the business’ hierarchy. It should be noted, however, that although associate and senior consultants were found to be dissimilar positions in Deloite and Touche, these types of positions were held to be similar in of Kurt Salmon Assoc. Inc, 87-INA-636 (BALCA 1988). This decision, which was rendered before Delitizer, found that although the positions had different foci (i.e. the consultant analyzed the situation for individual companies where as the senior consultant analyzed the situation for an entire country’s industry), the basic talents required for the positions were essentially the same. Id. at 3.
Other pre-Delitizer BALCA decisions also give some guidance with regard to the dissimilarity standard. In Matter of Electronic Corp., 89 INA 182 (BALCA 1989) and Matter of EIMCO Process Equipment Co., 88 INA 216 (BALCA 1989), BALCA found dissimilarity after looking at factors such as responsibility, skill level, level of supervision, and the customary hiring practices of the employer.
III. The Standard Created by PERM
The DOL, in formulating PERM, considered removing the Delitizer exception and implementing a complete prohibition to any experience gained by the alien while working of the employer in any capacity. Very few comments received by the DOL supported this change, however. Thus, DOL permitted such an exception to the general rule, but modified the Delitizer standard because it considered the criteria “unnecessarily complex and in practice difficult to administer.” 69 Federal Register, No. 246, 77354
The final PERM rule endeavors to simplify the approach taken in Delitizer and subsequent cases. It replaces the “dissimilar” standard with the “substantially comparable” standard. Under PERM, an employer is allowed to consider on-the-job experience so long as the employer can show that the job in which the alien gained the experience is not substantially comparable to the job for which the labor certification is being sought. A substantially comparable job means a job or position requiring performance of the same job duties more than 50% of the time.
IV. Challenges from the New Standard
At first blush, the PERM “substantially comparable” standard does not appear to undermine the Delitizer “dissimilar” standard. Both standards appear to be asking for the same thing. After careful analysis, however, it becomes clear that the PERM standard is more rigid, more difficult to establish, and may reverse Delitizer.
Under Delitizer, an employer can use any combination of factors to show that the positions were dissimilar even though the duties were in fact similar. BALCA clearly stated that job duties alone cannot be used to determine dissimilar positions. An employer should instead look at a variety of factors, such as level of supervision, placement in the employer’s job hierarchy, salary scale, and skill level.
PERM, on the other hand, rejects this laundry list of factors to consider and instead looks to job duties alone. A worker can only include on-the-job experience as part of his/her minimum requirements if the duties are not substantially comparable (i.e. the two positions have duties that are different more than 50% of the time). Essentially, the employer has the burden of showing an hour-by-hour break down of duties required for each job. If the job applied for involves the same work for more than 50% of the time, then the on-the-job experience cannot be considered.
In light of this, we believe that an important issue to advocate is what constitutes the “same duty” under PERM. In other words, we must determine how to distinguish between different job duties. If, for example, an Associate Consultant provides analysis for a client and a Senior Consultant oversees and reviews the Associate’s analysis, can we show that oversight and review of the analysis is different from the analysis itself? One can argue that overseeing and reviewing analysis is different from the duty of actual analysis because it requires different skills. One can prove this by providing the Certifying Officer with the documentation suggested in the Comments to the New Rule: “position descriptions, the percentage of time spent on various duties, organization charts, and payroll records.” 69 Federal Register, No. 246, 77354. If the Certifying Officer agrees with this analysis after looking at this documentation, then we may find that Delitizer is not completely dead. After all, level of supervision and skill level are factors that have been considered in Delitizer and its subsequent cases. Further, those cases also encourage providing the Certifying Officer with organization charts and payroll records as proof of the employment hierarchy.
Keeping the Delitizer analysis alive is important for employers opting to re-file an already filed labor certification. If an employer decides to re-file an application, and that employer relied on the Delitizer standard for the initial application, it is uncertain as to whether the on-the-job experience will be permissible in the new filing. So, for example, if the new job described on the labor certification involved supervision of others, and the former job did not, the Delitizer standard could have been met without having showing that the duties between the “dissimilar” jobs were not more than 50% different from each other. If the employer took such a position under Delitizer in the initial filing, it now has the burden to distinguish the job duties to meet the “substantially comparable” standard. Through utilizing the analysis and documentation described above, it may still be possible use the on-the-job experience gained by the alien.
In light of all this, it is important for employers and practitioners to be cautious in filing and re-filing labor certification applications. One must not just assume that the standard established by PERM simply reiterates that formulated in Delitizer. Delitizer is not dead and can be preserved – only now its factors must be used for a different purpose. They should be used to distinguish between job duties, where as before, they were used broadly to show dissimilarity.
This article originally appeared on http://www.cyrusmehta.com/.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C. She passed the July 2004 New York Bar Exam and is currently awaiting admission to practice law in New York. She is a 2004 graduate of Case Western Reserve University Law School, where she was the Editor-in-Chief of the Journal of International Law. She is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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