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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.

July 19, 2009

About PERM: What Does "Training" Mean?

The PERM Law and BALCA decisions are replete with the term "training," but in the same authorities there is no concensus about what it means.

In olden times, it usually meant an apprenticeship or entry into a guild of workers, and in industrialized England, Dickens wrote in Great Expectations that Pip was given to his master to train as an iindentured servants.

In modern times, young persons who live in developing countries may seek to be trained for jobs as young as 12-14 years old, and in the US the term "training" is still used to describe some forms of apprenticeship in trades. 

Although the traditional meanings of training may no longer seem relevant, the term has not yet been replaced with a more modern definition.

The PERM Form 9089 (first edition) does not have anywhere on the form to document an alien's training. An FAQ valiantly attempts to resolve the problem by advising employers to squeeze training information into Part "J" --  however, with zero tolerance requiring an electronic denial of PERM if anything on the form is out of place, this is a daunting task. (The new PERM form will resolve this problem by including a special section to list training.)

Some views of "what does training mean" may be gleaned from experience of practitioners and by reviewing BALCA decisions to see how the term has been used in different situations.

First, a period of classroom training may be seen as training, as well as one which includes on-the-job experience. Note that most students pay for schooling and training, instead of getting paid for the opportunity to gain skills.

Second, a person may be trained wholly on the job. In this case, training is distinguished from experience by the level of qualifications to achieve entry level qualifications. For example, a chef may require two years experience, education or training before being able to work as a cook. (I apologize for this very low estimate of preparation time-- it comes directly from the US DOL O*Net). Thus, one to two years of cooking school, or unpaid on the job experience will suffice. Prior to gaining the qualifications to cook, the applicant can not be characterized as a cook, but rather as a cook-in-training.

Third, while the alien may need to prove he or she was trainedd to qualify for a position, the alien may also be used as a "trainer" to train US workers. In some cases, an Employer may need to prove that an alien's services are needed to train, and not to be trained, if there are no qualified US workers available. The DOL does not look favorable on applications where aliens are provided with training, instead of Americans, however aliens may be used to train US workers, who may then replace the aliens.

In terms of PERM, the most important fact about training is that it does not require proof of payment by the employer to prove the period of training. Therefore if no salary was paid, the alien can still prove qualifications for a job, based on education or training.

The important thing is to look at the details of the job and its requirements. A PERM case destined for third preference approval by DHS requires two years Specific Vocational Preparation (SVP). This is defined as post-secondary education, work experience or training.

Employers must be diligent to make the job requirements clear in the PERM application on Form 9089 and in all recruitment efforts, so that requirements of experience, education or training (even if unpaid) be clearly offered to all applicants who apply for the position.

And now that we understand more about "training", we must not forget the requirement to put the "Magic Language" on Form 9089, i.e.,  that any suitable combination of experience, education or training is acceptable.

If the alien already works for the employer and only qualifies for the employment opportunity because of alternative requirements offered, the PERM rule requires the Employer to put "Magic Language" on almost every PERM application, i.e., that any suitable combination of education, experience or training is acceptable. The reason for the Magic Language is that if there is any ambiguity or misunderstanding about the actual requirements, for example whether a requirement should properly be characterized as education, experience or training, the Magic Language will cure that defect because it clarifies that the terms education, experience and training  are not at issue. What is at issue is that the applicant must be qualified by any combination thereof.