Since 2005, when the PERM Rule went into effect, employers have
been informed by the Office of Foreign Labor Certification (OFLC)
that adequate recruitment for U.S. workers requires two Sunday ads
in a newspaper of large circulation and a thirty-day job order in
the state workforce agency.
Some positions require three extra recruitment steps if they are
classified as professional. To this end, the PERM Rule's
Appendix A lists occupations deemed professional in order to
provide employers with certainty as to whether their job offers are
professional or not.
Electronic review of labor certification applications is the
cornerstone of PERM, and bright line tests offer consistency and
efficiency for rapid agency review of PERM applications.
The term “professional occupation” is defined in the
PERM Rule (See § 20 CFR 656.3):
Professional occupation means an
occupation for which the attainment of a bachelor's or higher
degree is a usual education requirement. A beneficiary of an
application for permanent alien employment certification involving
a professional occupation need not have a bachelor's or higher
degree to qualify for the professional occupation.
However, if the employer is willing to accept work
experience in lieu of a baccalaureate or higher degree, such work
experience must be attainable in the U.S. labor market and must be
stated on the application form. If the employer is willing to
accept an equivalent foreign degree, it must be clearly stated on
the Application for Permanent Employment Certification
This definition allows foreign professionals to be certified
even if they do not have a bachelor's degree or equivalent.
The emphasis is on expanded recruitment efforts and not on alien
However, this definition is inconsistent with the ones that
focus on higher education. For example, H-1B applications must
document not only that the position requires a bachelor's
degree but also that the foreign worker possesses the degree or its
This FAQ is squarely aligned with the PERM definition:
How does an employer determine whether to advertise
under the recruitment requirements for professional occupations or
The employer must recruit under the standards for
professional occupations set forth in § 656.17(e)(1) if the
occupation involved is on the list of occupations, published in
Appendix A to the preamble of the final PERM regulation, for which
a bachelor's or higher degree is a customary requirement. For
all other occupations not normally requiring a bachelor's or
higher degree, employers can simply recruit under the requirements
for nonprofessional occupations at § 656.17(e)(2).
Although OFLC has consistently advised stakeholders to follow
Appendix A religiously during the last sixteen years, an OFLC audit
team recently concluded that an employer erred when it relied on
Appendix A for recruitment guidance because OFLC believed that the
occupation for the job offered ought to be on Appendix
In that case, an occupational code for the position of
Application Developer had been eliminated from the O*Net but was
still listed on Appendix A while a new title and code had been
added to the O*Net which was not on Appendix A.
The rationale of the denial states that the occupation for which
certification is sought, “Application Developer,”
matches the position of “Software Developer,
Applications,” which does correspond to SOC Code
OFLC asserted a rationale best described as “could have,
would have, and should have”: that the employer could
have taken steps to research the history of the two positions by
cross-walking them on the O*Net, would have discovered the close
correspondence between the two positions, and should have deduced
that professional recruitment was appropriate.
Appendix A has not been updated since its inception in 2005 and
is undoubtedly incomplete and out of date, but the responsibility
to update Appendix A falls squarely on the shoulders of the OFLC,
not on the employer. Although the agency is well intentioned in its
efforts to protect U.S. workers, the PERM Rule contains other tools
to protect U.S. workers from classification discrepancies —
including orders for additional, and supervised recruitment steps
judged appropriate to the job.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.