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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.

February 08, 2009

Copying Job Descriptions from the O*Net

One mistake made by many employers and their representatives is that they copy job descriptions for PERM cases directly from the O*Net. This error is very transparent and must irk the examiners at DOL who review PERM cases.

The job descriptions in the O*Net contain no detail and therefore are not realistic presentations of jobs.

For example, Operations Research Analyst 15-2031 in the O*Net states the job duties are to "Formulate and apply mathematical modeling and other optimizing methods using a computer to develop and interpret information that assists management with decision making, policy formulation, or other managerial functions. May develop related software, service, or products. Frequently concentrates on collecting and analyzing data and developing decision support software. May develop and supply optimal time, cost, or logistics networks for program evaluation, review, or implementation."

This is not a true representation of the actual job offer from the employer.

One would have to provide details to explain the actual duties. What kind of models? Would kind of information? What kind of programs will be used? What type of management decisions, regarding what? What kind of policies or "other managerial functions?"

DOL has warned that while specificity is not required in PERM cases, lack of specificity in job descriptions and minimum requirements results in a wider pool of seemingly qualified job applicants.

A recruitment report must be written at the end of the PERM recruitment process. This report becomes part of the PERM Record File, which must be kept for five years. The Report must include a statement about eligibility of workers referred during the recruitment process.

A report stating that no qualified job applicants were found despite the existence of only very general job requirements in the job order is not likely to pass muster. This is not to say that there are not job opportunities for which US workers are not readily available at some place and point in time.

DOL has information about job opportunities and worker availability, and an audit may be expected for an otherwise perfect application simply because of internal inconsistencies such as generalized descriptions.

The DOL cannot accuse an Employer of fraud, since PERM applications are filed on the honor system, but if the sincerity of the process is in question, the DOL can order supervised recruitment. This would involve the DOL providing an address for resumes to be sent. If the Employer stated that few or no job resumes were received, and after supervised recruitment hundreds of resumes from qualified workers are submitted, what may one conclude?

The attorney's job is to communicate to the Employer that the job description and requirements must be stated in great detail on the 9089 form, and that job applicants must be shown to be unavailable, unwilling, unqualified or unable based on objective, empirical evidence.

Last week a client asked me to a second opinion for a PERM application filed by another attorney. I noted that the job description was copied word for word from the O*Net, and I also that while the recruitment report stated that there were no job applicants, the 30 day job order in the SWA showed 57 resumes referred to the Employer during the first ten days. The application is currently under audit. I told the client that given those facts, an approval would be unlikely.