PERM Professionals: Beware the Crosswalk

Since 2005 when the PERM Rule went into effect, employers have been instructed 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, and to this end, the PERM Rule established a list of occupations on Appendix A deemed professional to provide employers with certainty whether 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 definitiuon is inconsistent with one 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 informed stakeholders during the last 16 years to follow Appendix A religiously, an OFLC audit team recently concluded that an employer erred when it relied on Appendix A for recruitment guidance because it appeared to OFLC 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 focus, 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, supervised recruitment steps judged appropriate to the job.