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Bloggings on PERM Labor Certification

by Joel Stewart

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

September 02, 2008

Rohit Turkhud on Experience Gained on the Job

Rohit wrote an article for the PERM BOOK II entitled, "Actual Minimum Requirements and Experience Gained on the Job."  Gary Endelman's article also addresses this issue, on a policy level. Gary's message to the Bar was not to be afraid of filing applications where experience was gained on the job. Gary's advice is based on the premise that the PERM rule has changed the test from something like totality of the circumstances to an empirical analysis.

During recent ILW.COM events, we focused on this issue. Of interest were the opinions of David Ware and Dave Lazaar. David Ware recommends that the more-than-50%-comparable rule be applied through Excel tables showing the job duties in which the alien was trained and the job duties in the proposed position.  (The PERM regulation instructs us to document more-than-50%-comparable "by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.)

David Ware, of course, is an AILA practitioner in New Orleans who is always on the cutting edge of technology. Equally as important, is the opinion of David Lazaar, who worked for 10 years in the New York State SWA and currently works in the office of Leon Wildes. David states that the comparison of job functions should be presented in a well-written narrative. Both Davids have given us good advice. The result should be the same. Only the styles are different. In practice, the rule requires us to compare job duties both qualitatively (whether the job duties are comparable) and quantitatively (whether they are 50% or more comparable, i.e., similar).

My own opinion is that the better of the two approaches depends on the skills of the practitioner or office preparing the comparison. David Ware's Excel file approach makes sense, since graphic results can not be easily attacked by DOL. However, it is no easy job to create excel files, showing the difference between job functions qualitatively and quantitatively in two different jobs.

Still a third approach has been espoused by Ann Kanter, who recommends the traditional Delitizer totality of the circumstances test. Delitizer tells us to distinguish two jobs by comparing things like job title, job duties, supervisory functions, job requirements, job salaries, employer's organizational chart, whether and by whom each position was filled, whether the position is newly created, relevant prior employment practices, and comparative amount of time, in percentage of the daily work hours, of time spent on performing each duty. Obviously, the PERM test incorporates some of the Delitizer issues.

Rohit pointed out some important, additional points:

  1. Same employer does not include employers with different FEIN numbers.

  2. Contract Workers can not be those who work directly by contract with the PERM Employer, but may be those who work for a third employer who contracts the alien's services to the PERM Employer.

  3. BALCA's decision in "Matter of Demos Consulting Group, Inc., 2007-PER-20 (May 16, 2007), BALCA ruled on 20 CFR 656.17(h)(4) and stated that this section was only intended to control "where the alien does not meet the primary job requirements, but only qualifies for the job because the employer has chosen to list alternative job requirements, the employer's alternative requirements are unlawfully tailored to the alien's qualifications.....unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable." However, the Magic Language is not required if the employer requires experience in the alternate requirements alone, and does not seek experience in the job duties itself.

  4. Caution: The Magic Language joins three forms of SVP with the word "OR" and not the word "AND" and not the word "AND/OR". Thus a worker may be qualified by a combination of only one of the following: "education, training, or experience."

In summary, the PERM ruile has provided better guidance than the pre-PERM rule, allowing for a quantitative determination whether a training position may qualify an alien for experience gained on the job. Each practitioner will approach this diferently, as explained above, or perhaps the best way is to create an amalgamation of the WARE-LAZAAR-KANTER approach, providing excel files, detailed narratives, and a Delitizer totality of the circumstances test to assist the DOL in granting an approvable application!