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

form.

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

qualifications.

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

equivalent.

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

nonprofessional occupations?

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

A.

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

15-1031.00.

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.

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