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Listserv Q&A for
"Preparing For PERM With Joel Stewart "

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Under PERM, could you still maintain alternative qualifications for a cook, e.g. "2 years as cook or 2 years as chef"? After Jan. 1st, assuming PERM is not yet in place, does it matter if one files as RIR as opposed to regular processing?

Answer by Nathan Waxman:

The draft regs do indeed seem to ban alternative requirements, but this appears to be in the context of alien qualification via related experience (usually in the Delatizer context). However, they also eviscerate Bronx Medical, by allowing U.S. workers to qualify through combinations of experience and education not specified. Perhaps the way these seemingly inconsistent provisions would be reconciled is that while the alien can't qualify through related experience, the employer can enumerate alternative requirements (which are obviously expansive not restrictive) in the event that the alien beneficiary qualifies through the Par. 13 experience, not through the related. E.g. a cook has experience as a cook, but a chef would be considered as well.

Answer by Ester Greenfeld:

The draft PERM regulation prohibited any and all alternative minimum qualifications. This made no sense to me, but that's what it said. There are obviously a lot of differences between RIR and regular processing so it always matters whether you file RIR or regular. However, from the information we have so far, I don't think filing before or after January 1 is significant in deciding whether or not to file an RIR. When PERM actually becomes effective, of course all cases must be filed as PERM cases.

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