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!
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