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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.

May 16, 2009

How NOT to Predict Success in a PERM Case!

Many times employers ask what the chances are for an PERM application to be approved. The question is normal in the business world where percentage estimates for gain or loss are widely used in planning transactions.

While the question is normal per se, it belies ignorance of the mechanism of the PERM process, and the answer to the question can only be expressed by different types of measurements, based on the regulations and legal standards involved in the search for a worker.

Due to current high levels of unemployemtn during the current world financial crisis, most employers can find workers, but may still be hard put to find qualified workers who are able, willing and available to work in specific job opportunities.

Let's look at the meaning of availability, willing, able, and qualified.

Availability may be an issue, because some workers who have lost their jobs may be looking for any work available for any length of time, however, they should be expected to respond to a position advertised under PERM with the expectation that the job opportunity is permanent in nature and not just a short term position. PERM positions by law may not be temporary in nature. Unless the position requires little or know experience or training, the employer is entitled to question the job applicant's intentions to occupy the position for more than a short time.

Willing is another issue to examine. Many job seekers will express interest in a position, but will not actually accept the position if offered to them. Think of like persons who go to a realtor to look at houses for sale. They may appear to be interested in numerous houses and go to visit them all, but not necessarily with a checkbook and money in the bank to purchase on that specific occasion. Looking for work is a difficult process of self questioning and evaluation in which an individual challenges him or herself to create or change a life style through employment. An experienced employer should be able to tell if an applicant is serious about seeking employment. The best way, according to the Department of Labor (and I concur) is to offer the job to the applicant. If the position is available immediatley, the applicant will state if he or she is willing to accept the position and should not procrastinate.

Able is a requirement for PERM certification, but what does it mean?  A job applicant must be physically able to do the job, but there may be other problems like commuting distance, family obligations, school plans, licensing requirements, or health limitations. Some persons cannot work in a hot place, or a cold place, or in a place where fungus or other contaminants have been found. This actually happened to someone I know who worked in a court house, until fungus was found in the AC system.

Finally, on the issue of qualified, this is a complex issue that requires the employer to make an objective decision about each job applicant. The requirements to perform the job are based on job functions which are described both in general and detailed terms in the O*Net. Some people look only at the generalized job description, and do not realize that the job functions listed under the generalized description are the meat of the matter. Applicants must be qualified to perform at least the key functions. If the position for a secretary is to type, prepare reports, answer the phone, and make coffee, it might be considered that ability to make coffee is not a legitimate job requirement, but the other duties are important -- even answering the phone, i.e., dealing with telephone inquiries, identifying the caller, taking accurate notes, and being understood -- and applicants must be qualified to do that, or easily trainable.

Taking all this into consideration, it should be clear that it is not possible to predict the outcome of a PERM case using a system of percentages, nor is it within the provenance of an attorney to do so. However, a competent employer should be able to make judgments about conditions in the job market and availability of job applicants under the conditions described in the statute. They must be qualified, able, willing and available.