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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.

April 13, 2009

Minimum Requirements for 2nd Preference Petitions

I received an interesting comment to last week's blog entry. If you haven't read the entry, please take a quick look, and then continue reading this entry.

We were talking about the interplay between Job Zone Levels, SVP, Prevailing Wage Determinations, and DHS Preference Categories. The main point I made is that there are few job opportunities in Job Zone Five for use by businesses, and that while applications for job opportunities in Job Zone Five have the highest level of permissible requirements, occupations in Job Zone Four must have lesser requirements, i.e., in Job Zone Four, only a total of four years preparation training time is permitted, so that applications with requirements such as Bachelor's plus Five Years of Progressive Experience, or, alternatively, a Master's Degree plus years of experience, automatically exceed the DOL standards for "normal requirements," and would therefore result in an audit.

The commentator stated that in his recent experience, the DOL is no longer auditing applications that  belong to Job Zone Level 4 which exceed 4 years of training. I am not sure if other practitioners have had the same experience. It may be that the commentator is correct about a general trend, or it may be an experience of this particular commentator. If anyone has information about less audits being issued (of cases originating from the O*Net Job Zone Level Four and which have requirements that exceed four years total preparation time), I would appreciate hearing from you.

Meanwhile, the commentator made another comment, which I would like to discuss, and with which I agree. He stated that the real issue is whether the diploma requirement is normal, not just the total preparation time. For example, if the Employer requires a Master's Degree, the question becomes, "Is a Master's Degree normal for the occupation," and not just whether the Master's Degree and years of experience exceed normal training time.

This is a very good point, however, I did not include it in the discussion last week, because I was focusing attention on the four standards cited, Job Zone Level, SVP, Prevailing Wage and Preference Classification System. The problem is always where to limit the information and conversation. Otherwise, the blog entry becomes overly broad and confusing to the readers.

The Commentator is correct. Not only must we be concerned with total training time, but the Diploma Requirement must be normal for the occupation. For example, a high school teacher requires a Bachelor's Degree, but not necessarily a Master's Degree. If the Employer requires a Master's Degree, it might exceed normal requirements, not the years of training time (because a Master's Degree is equal to four years training time, within the parameters of Job Zone Level Four) but normal industry expectations for a Master's Degree.

Accordingly, employers must be sure that second preference applications fall within the general guidelines of the DOL. The O*net describes the normal degree requirements for each occupation. It some cases it might state that a Master's Degree is usually required, and in others that only a Bachelor's Degree is required. If the latter, then a Master's Degree would be unusual and possibly restrictive.

Another source used by the DOL is the Occupational Outlook Handbook (the OOH). This manual describes the growth and development of the industry, the outlook for job availability, and the range of normal requirements for jobs.

Industry standards can also be established by other means, such as independent surveys, information on the Internet, and hiring practices of other employers, which may be regarded as being subjective or deficient to establish "normal requirements" in the US.