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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.

March 29, 2009

Part H: The Heart of a PERM Case

In Part H, the Employer has to put all the information about the job opportunity, the job details and the minimum requirements.

An engineering case, for example, might be classified as Job Zone 4, which permits only 2-4 years total combination of education, experience and training (SVP).

I recently reviewed an application for a colleague which involved mining engineering. This should require a degree in geology or a similar field. The O*net is 17-2151.

Looking at Part H on the PERM form, we note the following questions and possible answers:

H-4 -- Education

Here the Employer could require a Bachelor's with major field of study in Geology. It doesn't matter if the alien does not have the degree, because the job requirements can be stated in alternative requirements. See below.

A degree in Geology uses up two years of SVP. Since the SVP total permitted is four, there are still two years of SVP to use.

An Employer might require a Master's Degree here, although the Master's would use up the entire four years of SVP. Another consideration is whether a Master's Degree is normal for the profession, and not whether the alien possesses the diploma. If not normal, it would be restrictive.

H-5A -- Training. Training should be considered in lieu of experience, or in addition to experience. A year of training suggests a hybrid between education and experience, i.e., on the job training to learn the ins and outs of the job. A qualified geologist might possess a diploma, on the job training, and work experience.

H-5B -- Field of training would be engineering, not geology, since geology is the field of study required, and the training required would be in engineering, i.e., on the job application of geological principles to engineering procedures.

H-6, A & B: Experience should normally be required. As mentioned above, if a Bachelor's Degree is required, this would use up two years of SVP. If training is required, say, one year, then that would leave one year of experience available. H-6-B would be either one year (if the employer already required a Bachelor's plus one year of training), or two years (if the employer required a Bachelor's plus no training).

H-7 -- An alternate field of study would be required in H-7, if the Employer stipulated Geology in H-4-B but would accept a field of study such as Engineering.

H-8, Nnotwithstanding all the above, the Employer may also stipulate an alternate combination of education, experience and training. Note that the current (old) 9089 form omits "training" in this part of the form. This is an oversight, and training requirements shoud be written in using box H-14.

H-8A -- If the alien is going to qualify without a diploma, then 8-A should be answered "No" and 8-A should be answered "High School". One could also put "none," however, it is unlikely that a qualified applicant could fill the position without any schooling. In some countries, aliens attain professional qualification through experience, and could have less than 12 years of high school, for example, middle school. This could be indicated using the box "Other." High school and below are not considered SVP, they are General Preparation, not Specific Vocational Preparation.

H-8-B -- This would be "state the number of years of "high school" or "other" in H-8-A, if "high school" or "other" were chosen. Some countries have 10, 11, 12, or 13 years of high school. The American system is 12 years. If the country that the alien completed school has 10-11 years, the Employer should indicate that in H-8-B. If the alien's country has more than 12 years of school, then "High School" may be required, without regard to the number of years, since the alien's high school would actually represent a higher attainment than in the US system. Nevertheless, all requirements should be carefully analyzed and consultation should be held with a curriculum evaluator to gain a complete understanding how to compare the alien's actual education with the American system.

H-8-C -- This would include 3-4 years of experience, if the alien does not possess a bachelor's degree. Although the job requires a Bachelor's Degree, the alternate requirements can be written without the Bachelor's degree requirement. Thus, as long as the Employer does not exceed the SVP of "4", the Employer may use any combination of training and experience. In this hypothetical, we postulated one year of training in H-5-A, so there could be 3 years of experience required in H-8-C. Note that it is not necessary to follow the DHS "3 for one" formula, used to determine eligibility for H-1B visas. In labor certification processing, even if the alien occupies the job position because of 12 years of experience used to acquire the H-1B, the PERM case may have a lower set of requirements. In fact, the employer is required to stipulate only minimum requirements in a PERM case, whereas in an H-1B petition, the employer may stipulate high end requirements. The instrument used to maintain equity in H-1B processing is the prevailing wage. The higher requirements the H-1B employer stipulates, the higher the wage will be. The Prevailing Wage is determined by the State Workforce Agency, and four different levels may apply, depending on the level of education, years of experience, specialized requirements, supervision, etc.

H-9 -- This would be required only if the Employer required a Bachelor's Degree. A foreign diploma may be accepted, but requires an evaluation.

H-10 -- This box is only used when the job opportunity requires experience in an alternate occupation. Alternate occupation means a job with a different O*Net number, and not just a job with a different title. Note that each O*Net occupation has alternate occupations listed on the last page of the O*Net report.

H-11 -- The Employer should be careful to use detailed job descriptions and not just copy generic language from the O*Net. Real-job details, functions and requirements, should be included on the PERM form.

H-12 -- Business necessity will be required if the Employer's requirements are not normal for the position. This would occur if the total of education, experience and training exceeded the SVP (in our hypothetical this is 4 years) or if the degree requirement exceeded normal requirements.

H-13 -- Foreign language requirements should be avoided unless absolutely necessary to perform the job duties. Employer preferences are not sufficient.

H-14 -- If training is required as part of the alternate requirements, the employer should provide a summary of the minimum requirements in H-14. For example, in our hypothetical, "Employer will accept a Bachelor's Degree, one year of training and one year of experience" or, in the alternative, "one year of training and three years of experience," the magic language is only required if the alien is working for the employer and qualifies by virtue of the alternate requirements (this would obtain in a hypothetical where the alien currently occupies the position with an H-1B visa obtained by virtue of an H-1B but did not possess a diploma, i.e., only qualified by virtue of training and experience). Nevertheless, I recommend using the Magic Language in all cases, since it only states the status of the law which requires employers to consider workers required by virtue of alternate qualifications, even if not stipulated on the PERM form. The Magic Language is also useful in the present case where the alien qualifies by a combination of training and education, whereas the principal requirements are a Bachelor's Degree, one year of training and one year of education. As the requirement concept is complex, and some of the terms are not clearly defined in the regulations, the Employer is advised to use the Magic Language in all cases, as it clarifies the inherently ambiguous language required by the regulations. The Magic language, of course, is "Employer will accept any suitable combination of education, training or experience."