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Bloggings: January 23, 2008

by Joel Stewart

January 22, 2008

Identifying Professional Jobs for PERM Recruitment

The PERM rule requires three additional recruitment efforts for Professional positions, however, although the term "Professional" is used as a term of art, it is not intuitive, as we have been accustomed in other applications of the term.

The term "professional" is defined in Section 656.3 of the PERM rule,

"Professional Occupation means an occupation for which the attainment of a bachelor's or higher degree is a usual education requirement. A beneficiary of an application for permanent alien employment certification involving a professional occupation need not have a bachelor's or higher degree to qualify for the professional occupation. However, if the employer is willing to accept work experience in lieu of a baccalautreate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on the Application for Permanent Employment Certification form."

Based on this definition, it appears that it is the same one for H-1B visas. Over the years, the term "H-1B" metamorphosized from "professional" to "specialty occupation," however, notwithstanding the difference in title, the definition used by H-1B specialty workers on the one hand and professional occupations under PERM on the other hand are almost identical.

The definition is expansive for H-1B's, not limited to a specific list of jobs, but professional occupations under PERM are limited only to those few listed in Appendix A of the Preamble to the PERM Rule. The preamble states,

"c. Recruitment for occupations in Appendix A to the Preamble. In appendix A to the preamble, we have published a list of occupations for which a bachelor's or higher degree is a customary requirement, and for which the employer must recruit under the standards for professional occupations set forth in Sec. 656.17(e)(1). We are not codifying this list of occupations so that we can appropriately and timely modify it as necessary without having to engage in the rulemaking process."

Professional PERM occupations also appear in Appendix D in the DOL's FAQ on Prevailing Wages. Appendix D is used to determine prevailing wages. As most readers know, a four-tier prevailing wage system came into existence by public law in "The implementation of the H-1B Visa Reform Act of 2004." Details of these changes were included in the publication of regulations, including the PERM regulation on December 27, 2004. DOL issued a guide called the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs which summarizes these changes and provides the step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes. DOL stated, "The occupations found in Appendix A to the Preamble are also found in Appendix D of the DOL Guide to Prevailing Wages, issued in the form of a FAQ on May 9, 2005. An earlier version issued in March, 2005, was superceded by the May 2005 version." Appendix A and Appendix D are the same, except that Appendix A appears in the preamble to PERM and Appendix D appears in the operating instructions of the agency (FAQ's).

Each occupation in Appendix A has an SOC number. The occupation codes consist of six digits followed by a point and then two additional digits, frequently zeros. For example, the Occupation of Clergy has the SOC code 21.2011.00. However, some occupations do not end in zeros, like the occupation of Sales Agents, Financial Services which has SOC code 41-3021.02. It is important to understand that only the occupations listed on Appendix A (or Appendix D!) are occupations that require professional recruitment, and not all occupations sharing the first six digits. For example, the occupation 33-3021.03 (Criminal Investigators and Special Agents) is on Appendix A, but occupations ending in 33-3021.00 (Detectives and Criminal Investigators), 33-3021.01 (Police Detectives) 33-3021.02 (Police identification and Records Officers) and 33-3021.05 (Immigration and Customs Inspectors) are NOT on Appendix A.

The jobs on Appendix A include some other surprises that run counter to our intuition. I was surprised to note that the occupation of Insurance Sales Agent 41-3021.00 "Insurance Sales Agent" (Job Zone Three) is on Appendix A. It commands only two years SVP. Perhaps DOL included it on the list because it requires a license, or perhaps it was a mistake. In actual fact, DOL has acknowledged that many mistakes exist in classifications of jobs.

Managers are another group that need to be carefully checked. As a general rule, managers have not been given professional or specialty occupation designation for H-1B visas, but some management positions may be professional, such as management of professional occupations. Marketing Managers 11-2021 clearly belong on Appendix A, however, Sales Managers 11-2022 are also on Appendix A.

In conclusion, do not make generalized assumptions about Professional positions for PERM. The definition in the PERM regulation is helpful, but not conclusive. Not only positions in Job Zone 5 are on Appendix A, but also positions in lower job zones. Managers may be on the list, but in few numbers. DOL advises that the list may be used as a bright line test. No guessing is required. However, since Appendix A is may be changed by the Agency at any time, without going through the rulemaking process, employers must constantly verify that the Appendix they are using is the most recent version.