The Best PERMs In Life Are Simple: The Globalnet Moral
by Myriam Jaidi
It is always fun to find a silver lining in immigration law, because as immigration lawyers and clients we play on a confusing field, with goal posts moving just as we are about to reach them. On a recent blog post (June 18, 2010), available at http://cyrusmehta.blogspot.com/, my esteemed colleague Cora-Ann Pestaina discussed a silver lining in the inconsistent standards established by the agencies with which immigration lawyers and their clients are required to engage – specifically DOL and USCIS. She discussed how these inconsistent standards may resuscitate an I-140 where something has gone wrong. In the present article, we are trying to find the silver lining in the dark cloud over the labor certification process posed by a BALCA case that has narrowed the landscape of alternative job requirements: Matter of Globalnet Management LLC, 2009-PER-00110 (“Globalnet”).
The labor certification process, or PERM as it is lovingly called, is replete with potential pitfalls if an employer does not define the requirements for a position just so and in accordance with the DOL’s standards. Using alternative requirements can be even more treacherous if the employer is seeking to express its actual minimum job requirements creatively, or to try to make the requirement consistent with the equivalency definition under the H-1B rules, in recognition of the different paths, educational and/or experiential, individuals can take to qualify for a position. These alternatives may allow people with untraditional backgrounds to have a go at a job and a green card. However, too much creativity may lead to a denial of the case based on assertions of “tailoring” and “restrictive” requirements. Globalnet was one such case.
At issue in Globalnet was a labor certification filed by an employer presenting the following alternative requirements for the sponsored position: Bachelor’s plus 2 years of experience or 14 years of experience. Under the 3 to 1 rule from the H-1B context (see 8 CFR 214.2(h)(4)(iii)(D)(5)), 14 years of experience is equivalent to a Bachelor’s plus 2 years of experience. BALCA agreed with the Certifying Officer that these were not equivalent because the H-1B equivalency rule cannot be applied to labor certifications, and the only proper measure to use is Specific Vocational Preparation (SVP). SVP refers to “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”
The SVP scale uses levels and attending years of experience and corresponds to the DOL’s Job Zones. Most professional positions for which labor certifications are filed fall within Job Zones 4 and 5, which correspond to SVP levels 7 and 8 or 9, respectively. The experience for each of those levels is as follows:
7 Over 2 years up to and including 4 years
That BALCA chose SVP as the proper measure in Globalnet is useful to the extent that it provides clear parameters. It is not helpful in light of the inconsistent standards extant in other contexts (H-1B; I-140), and not helpful in light of the myriad possible ways to obtain the experience that reasonably prepares an individual to perform the duties of a particular job. Globalnet also does not provide reasonable guidance as to why the use of the 3 to 1 rule in that case resulted in a restrictive alternative; it merely asserts that it does. As Ron Wada notes, whether requiring 14 years of experience (using the H-1B 3 to 1 rule) as an alternative to a primary requirement of a Bachelor’s plus 2 years of experience is restrictive or expansive of the potential applicant pool “depends on which end of the telescope one is looking through, and reveals more about the viewer’s biases than the facts of the case.” Ron Wada, The Nth Degree – Issues and Case Studies in Degree Equivalency: Matter of Globalnet Management, 14 Bender’s Immigration Bulletin 1409, 1411 (Nov. 15, 2009). To the person who does not have a Bachelor’s, but has 14 years of experience, the alternative allows them to apply for the position, and seems to be expansive rather than restrictive. Thus, BALCA’s restriction here appears arbitrary. It must be acknowledged, however, that incorporating the 3 to 1 rule into the SVP scale (by, for example, allowing 12 years of experience to stand in for a Bachelor’s degree and therefore counting for 2 SVP years) would require a significant reworking of the concept behind the SVP scale, or at the very least incorporating an exception for this purpose. Such a change would make sense within the overall scheme of immigration law.
Primary and alternative requirements for a position, if the labor certification is going to be successful, must be “substantially equivalent.” (20 CFR 656.17(h)(4)(i)) There is no definition of that term, though cases like Globalnet provide an inkling of what might work, for now at least. But we don’t get too much guidance, that would take the thrill (meaning stress) out of the labor certification process. And that would be boring.
For example, in Matter of Agma Systems LLC, 2009-PER-00132, BALCA determined that the alternatives of a Master’s plus 3 years and a Bachelor’s plus 5 years, were not alternatives at all but rather “two sets of requirements that are essentially the same.” BALCA did not, as it was perhaps invited to do in Agma Systems, address the question of whether a Master’s standing alone could be considered equivalent to a Bachelor’s plus five years of progressively responsible experience, as they are in the I-140 context. See 8 CFR 204.5(k)(2). Given BALCA’s strict application of the SVP scale in Globalnet, such a set up may not work (although the Master’s alone would; as would the Bachelor’s plus 5, standing alone) because it pits 4 years against 7 years, which results in 7 against 8 in SVP levels.
But what do these cases do to alternatives that fall within the same SVP level, but are valued at different SVP years? For example, would a Master’s plus 5 years of experience (SVP years = 4 + 5 = 9) be deemed appropriately comparable to a Bachelor’s plus 6 years of experience (SVP years = 2 + 6 = 8) because both formulations fall within SVP level 8, despite the fact that one amounts to 9 SVP years and the other to 8 SVP years. What matters more? That the SVP years be equivalent or that they fall in the same SVP level, or both? Globalnet does not provide clear guidance on this issue and seems to indicate that the overall SVP level is the key factor. Thus, whether you fit into SVP level 8 via alternatives of 8 or 9 years, such alternatives should be acceptable. However, some scholars, including Ron Wada, warn that the safest course would be to ensure that when using alternatives, they should match in all respects, SVP years and SVP levels. (Note that another concern is whether USCIS might reject an H-1B extension for failure to comply with the H-1B equivalency rules, upon comparison with the related I-140 that relies on the DOL SVP formula. It seems that so long as the employer requires a Bachelor’s or equivalent in each context, and the individual meets that requirement based on the equivalency relevant to that particular context, the case should pass muster. This expectation makes sense in light of the fact that in the PERM context, employers often, when faced with an inability to justify their “real world” requirements based on business necessity, will reduce their actual “real world” requirements to meet the DOL’s definition of “actual minimum requirements” based on SVP.)
So what might be the silver lining in Globalnet? It calls upon us to simplify our labor certifications, and simplicity makes life easier. It compels us to determine the minimum requirements and avoid alternatives where possible, unless they are “pure” alternatives such as those blessed by BALCA in Agma Systems. Of course, the silver lining is frayed here and there because if we follow the simple approach and require simply 6 years of experience for an EB-3 skilled worker case, would a Bachelor’s degree holder with 4 years of experience know that s/he can apply for the job and potentially qualify? BALCA’s chosen framework seems to work against the labor certification mantra from Kellogg: be expansive not restrictive.
Simplification in a process wrought with hazards is something of a silver lining. Nevertheless, practitioners, their clients, and the process as a whole would be better served by coordination between the DOL and USCIS to achieve consistency on the equivalency question, especially since the USCIS formula for advanced degree equivalency in 8 CFR> 204.5(k)(2) (Master’s = Bachelor’s plus 5 years of progressively responsible experience) simply does not square with the SVP levels.
This article was originally published on (www.cyrusmehta.com) on July 17, 2010.
Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi worked as a public defender with The Legal Aid Society in New York City from 2002 to 2004. She received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of theMichigan Journal of Race & Lawand was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A.cum laudefrom Harvard University.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.