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Bloggings: December 5, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

December 03, 2007

Project "Perm Audits 2007"

In case you haven't been on this planet lately, Project Perm Audits 2007 has arrived. The blitz began with the recent closings of the Baclog Centers, apparently due to the availability of extra work force to review PERM applications.

In 2005, DOL introduced a new standard of "Zero Tolerance" electronic review which lived up to the name PERM -- "Program Electronic Review Management". During the first few years, the agency reviewed cases electronically, with little intervention from human beings. The main issues raised were regarding exactness on the PERM Form ETA 9089. Accordingly, the first PERM case to reach BALCA had to be used to determine whether "Zero Tolerance" met Due Process standards, especially when the mistake was a mere typographical error and the Employer could not refile because it was outside the 180-day recruitment period. In that case, Health America, BALCA 2006-INA-1, the ALJ's decided that since there was no warning to users during the electronic filing process, "Zero Tolerance" was improper. Since then, DOL introduced warnings have been introduced to prevent such errors. All the time, observers have been waiting to see if DOL would apply delve further, and not only issue audits and decisions based based on electronic PERM filing errors.

Project PERM Audits 2007 has now brought the issue of SVP, long a sleeper, to the fore. The SVP Issue centers on the lack of accuracy in the O*Net classifications of required to obtain experience, education or training. Known as SVP (Specific Vocational Preparation), it is defined in terms of ranges which are permissible minimum requirements in labor certification applications. A Bachelor's Degree is stipulated by long-standing DOL policy to count as two years (not four, because only the last two years of the four-year program are counted as specific), a Master's Degree as four years, and a Ph.D. counts as seven years. Experience, training and other forms of education (Associate Degrees and appropriate post-secondary education) are measured in real-time. For more information look at the "Revised Handbook for Analyzing Jobs."

Formerly SVP was defined by the Dictionary of Occupational Titles, but in 2005, on the effective date of PERM (March 28, 2005), the O*Net officially the DOT. The O*Net purports to classify requirements to perform jobs as accurately as possible and at minimal, entry levels. However, many unusual changes have been noted. Some jobs in the DOT were downgraded from previous levels, so that jobs which were categorized with SVP 8 are now relegated to SVP 7. In actual fact, the entire SVP concept has been changed, where previously levels were described as "more than up to and including," they now are described as "from up to and less than." (The controversy is beyond the scope of today's blog article but will be covered in future articles.)

As a result, Inaccuracies now abound in the O*Net. To give a cogent example, we were asked to assist an attorney with preparation of a response to audit. The position offered was "Director of Human Resources." In that audit, the Employer required a Master's Degree or a Bachelor's Degree plus five years progressive experience. Previously, the position (DOT 166.117-018 aka "Personnel Manager") would have permitted those requirements, with an SVP of 8,  however the O*Net lists the maximum SVP as 7 (no more than four years of education, training or experience). In other words, the DOL permits a Master's Degree, since it is equal to four years SVP, but does not permit the Bachelor's plus five.

Since we suspected that the government calculations are incorrect, we googled the search on and found 30 similar positions. We were amazed to see that not one single job had such low requirements. The job offers varied from Bachelor's plus Five years experience to Bachelor's plus 15 years experience.

During the ILW.COM PERM Workshop in New York last week, a great deal of input was received from the participants, since the SVP audits are the main concern now of labor certification practitioners. Attention was given to how to answer number H-12 on the PERM form. The Regulations and operating instructions incorporate various (sometimes conflicting) concepts, references to the O*Net, instructions on the PERM form and supplemental instructions available as downloads from internet sites. Practitioners also express uncertainty about analogies (improperly drawn) with the prevailing wage analysis made by SWAs and actual industry standards. The example above on Monster proves that industry standards are in wide difference with the O*net.

The concensus of the paricipants in the PERM Workshop was that if the Employer's minimum requirements surpass those described in the O*Net, the Employer should answer "No" to question H-12, and append business necessity documentation. In actual fact, the documentation is easy to obtain, as suggested above, from the Internet and from the Employer itself. The Employer can sign a statement to that effect and provide business records. A detailed description of the job duties, documenting that the job is not entry-level would also be helpful. The PERM Rule has its own business necessity standard, similar to the pre-perm rule drawn from Information Industries, 88-INA-82 (BALCA 1989). The PERM standard is that job requirements must represent the employer’s actual minimum requirements and that they bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner.

It is clear that according to the concensus of opinion, the best approach is not to challenge the SVP by answering "Yes" on the form (a form of civil disobedience that can be misinterpreted as lack of good faith), but to answer "No," expect an audit and be prepared to present business necessity. Although there is no resolution of the SVP issue in sight, I believe that the DOL will make some adjustment for administrative convenience. In other words, certain jobs which are clearly miscategorized in the O*Net and whose employers can easily provide business necessity are not good subjects for audits. The DOL will probably want to apply its resources to more challenging audit issues. If this occurs, applications with with "No" in H-12 may not continue to undergo the large number of audits as is current policy.