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Listserv Q&A for
"PERM Practice Here And Now"

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Would you detail the circumstances when to use the magic language?

Answer by Joel Stewart:

The "magic language" is found at 656.17(h)(4)(ii) --
"If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable."

In other words, there are two conditions for the magic language to kick in --

(1) Alien is emloyed by the employer

(2) Alien only qualifies by virtue of alternative requirements.

The best example would be a second pref case --

The primary qualifications would be a master's degree.
The alternate would be a bachelor's plus five years progressive experience.

The alien does not have a master's degree and is working for the employer.

Ergo, magic language required in item h-14.

Extra tip: We use the magic language to "soften" unusual combinations of experience, education and training. Where the requirements are wide apart (like a degree in business but the job is for an engineer) you can overcome the apparent inconsistency (business v engineering) by stating the magic language.

There is nothing new about the magic language....according to the Kellogg cases in pre-PERM, you had to be very flexible on the issue of related or alternate requirements, and you had to consider US workers required under pre-PERM law if they had "any combination of experience, education or training" in the specific requirements.

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