"Solving Today's PERM Puzzle"
Session 3 held on July 14, 2005
From Edward Litwin
INA§212(a)(5) 4 categories of reasons for rejecting U.S. applicants (able, willing, available and qualified).
INA§656.24(b)(2)(ii) [Old Regulation] “The Certifying Officer shall consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof,…”
INA§656.24(b)(2)(i) [PERM Regulation] “The Certifying Officer must consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof,…”
Mindcraft Software, Inc., [BALCA 90-INA328 (October 2, 1991)]- A U.S. applicant is qualified if with a nominal period of on-the-job training, s/he could perform the duties, even if s/he does not possess all the stated qualifications.
Ashbrook-Simon-Hartley v. McLaughlin [863 F.2nd 410 (5th Cir.1989)] In addition to meeting the specific requirements, the U.S. applicant must be able to perform the job duties.
INA§656.17(g)(2) & INA§656.24(b) Incorporates “reasonable training” language from relevant BALCA cases.
INA§656.17(g)(1) The 4 items required in the employer’s recruitment report:
PERM Guidebook for Foreign Labor Certification, “Documentation Requirements Under PERM, General Recruitment Documentation: The Recruitment Report,” Lexus Nexis p.8-5f