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

educated guesses.

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.

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