A little-known requirement in the PERM Rule states that
employers must offer to train job applicants, if they can acquire
the education, training, experience, and skills necessary to
perform the job duties in a reasonable period of time.
While deference is given to the Employer, whose judgment is the
best arbiter of such matters, government policy regarding the
requirements themselves are tortuously ambiguous.
To be fair to US workers, job specifications are strictly
regulated by government standards in official publications.
Employers must look to an on-line catalog of jobs called the
“O*Net,” which in turn is based on normal training
requirements detailed in the SOC (Standard Occupational Code). The
SOC was introduced in 1998, and conflated approximately 12,000
occupations that previously existed in the DOT (Dictionary of
Occupational Titles) to 23 major occupational groups and about
1,000 detailed occupations.
The DOT was the bible of employment immigration practice for
many years, and its job-related data were unquestioned. In the late
1980's, I went to visit the birthplace of the DOT, the North
Carolina Field Office, where Mr. Stanley Rose and his team
relentlessly determined and re-determined constantly changing job
requirements for all 12,000 jobs known to exist in the USA.
Mr. Rose showed me some of the office procedures, including
typical surveys made of US employers to determine their normal
requirements, but the results of these surveys were often at odds
with reality. Because employers had always suspected that the data
obtained for publication in the DOT were not reliable, I asked Mr.
Rose, who stated that many of the job requirement summaries were
Mr. Rose and his team were dedicated and well-intentioned
professionals, but the lesson to be learned is that statistics used
in the foreign labor certification program cannot be expected to be
100% correct, and this bears on question H-12 on the PERM ETA Form
9089. This question asks,
12. Are the job opportunity's requirements normal
for the occupation?
If the answer to this question is No, the employer must be
prepared to provide documentation demonstrating that the job
requirements are supported by business necessity.
If the employer answers “No,” an audit may be
triggered and denial of certification may ensue; and if the
employer answers “Yes,” and the DOL statistics do not
support the employer's conclusion, this may also trigger an
audit and denial.
Employers need to be aware of the fact that there are “real
world” occupations and training requirements – and there
is a parallel universe – the “PERM world.”
Tread carefully lest you fall astray!
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.