The U.S. Department of Labor (DOL) protects the American workforce by reviewing applications from employers who wish to hire foreign labor after conducting a bona-fide recruitment effort with fair wages in areas of intended employment. The program, known as PERM, is a 2005 update of an older law created that goes back to the 1970's.
The PERM Rule, sensitive to the need of home-grown workers, involves complex and sometimes confusing guidance that is used in the adjudication process, and denials will issue when employers fall astray. Based on recent trends, employers are likely to encounter objections if they do not adequately document why U.S. job applicants cannot acquire the skills necessary to perform the job during a reasonable period of on-the-job training.
Although the term 'reasonable', not defined by law, is generally understood to mean specific skills such as diverse IT technologies which are easily adaptable by otherwise qualified workers or cross industry management positions. In 2019, DOL audits often requested documentation from employers to prove that U.S. workers who were rejected could not have been deemed qualified with a reasonable period of on-the-job training.
Although it is not easy to prove a negative, employers may be able to provide detailed statements, with or without corroborating documentation, to prove the inability to train within a reasonable period of time. In one case decided by the Board of Alien Labor Certification Appeals, Kentrox, Inc., 2012-PER-038 (May 22, 2014), the employer provided a detailed explanation of technical matters involved in the firm's products that would prevent the firm from training a new worker. The employer's statement was accepted as sufficient documentary evidence to meet the burden of proof. But since this case was decided during a period of historic low unemployment, it may be assumed that the employer's opinion in a period of high unemployment will be more strictly construed.
Another more familiar part of the PERM Rule relates to the consideration of US job applicants who do not meet the stated minimum requirements but may be able to perform the job duties in a minimally qualified manner based on a combination of experience, education, and training. This notion is deeply imbedded in labor certification practice and often quoted as official DOL policy.
Often overlooked is an important reference material called the Revised November 2009 Employment and Training Administration Employment and Prevailing Wage Determination Policy Guidance. This memorandum, which should be on the desktop of every PERM stakeholder, is replete with reference to all sorts of training.
In conclusion, when conducting PERM recruitment, all U.S. workers who should be granted the benefit of the doubt when determining qualifications, and employers must explain why they cannot be trained within a reasonable period. And employers dare not forget that the name of the federal agency reviewing their PERM applications is the Employment and Training Administration.
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