10.1 In the past, job applicants who did not meet minimum job requirements were typically rejected. How will the new rule affect this?

Under current rules, an employer may reject a U.S. applicant who lacks one or more of the minimum requirements for the advertised position. The final rule provides that employers will not be able to reject a U.S. worker if it is found that the U.S. worker could acquire, during a “reasonable” period of on-the-job training, the skills necessary to perform the job. The full meaning of this remains to be seen. However, it is not expected that the new rule will require employers to hire workers who do not meet the minimum stated requirements in terms of education, training and experience. It may mean, though, that certain skills that can be learned during such a “reasonable” period of time may not be used as a grounds for not hiring a U.S. worker. For instance, if a professional job requires use of a particular word processing software, which can be learned with a few days of training, that might not be a ground for not hiring a U.S. worker who lacks that particular skill. The supplementary material with the regulation only sets vague guidelines for determining what is “reasonable,” stating that this varies by occupation, industry and job opportunity.

10.2 Will it be possible to continue to use experience gained with the same employer as a requirement?

Yes. Under the 2002 proposed rule, in a marked departure from previous policy and BALCA case decisions, employers would have been totally precluded from including as a requirement for a job opportunity any experience the foreign national gained working for the employer in any capacity, including working as a contract employee or for an overseas company. The final rule delineates a standard that is similar to that which is currently being used, though it is arguable narrower.
The final rule adopts a variation of the exception articulated in Delitizer Corp. of Newton, 88-INA-482 (May 9, 1990) (en banc), where experience gained on the job in a dissimilar position may be utilized, so long as the employer can demonstrate that the foreign national was originally hired into or contracted to work in a job that is not “substantially comparable” to the job for which certification is being sought. A “substantially comparable” job or position is defined as one where the same job duties are performed more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on various duties, organizational charts, and payroll records.
With regard to the second exception, “infeasibility to train,” DOL asserted in the supplementary material to the regulation that the argument is rarely claimed in practice but will be maintained in acknowledgement of the legitimate interests of the business community.

For purposes of assessing experience gained with the employer seeking a labor certification, the proposed rule utilized a very broad definition of “employer,” which included predecessor organizations, successors in interest, parents, branches, subsidiaries and affiliates, including those operating in other countries. The final rule has been simplified to provide that an employer is an entity with the same Federal Employer Identification Number (FEIN).

10.3 Can employers use “business necessity” to justify certain job requirements?

Yes, this will still be permitted. Currently, an employer's job requirements must generally be consistent with those normally required for similar jobs in the United States in terms of education, training and experience. Job requirements that exceed normal requirements are generally deemed to be unduly restrictive, unless the employer can demonstrate that the potentially restrictive requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer.

This will continue under the final rule. Employers will be permitted to interject a fair amount of specificity into the application to best tailor jobs to their needs. However, it should be noted that changes to the standards that define what is normal for the occupation will change under the PERM regulation. As of March 28, 2005, the Department of Labor will transition from using the Dictionary of Occupational Titles, a very comprehensive listing of requirements for thousands of occupations, to the more general Occupational Information Network (O*NET). O*NET’s “job zones” will be used to set the normal training, education, and experience requirements for the occupation. Where the job requirements exceed the level of education, training and experience deemed normal for the position, as determined by O*NET, the employer must demonstrate business necessity. Therefore, while the business necessity justification remains largely intact, a different triggering factor – exceeding the requirements deemed “normal” – has been adopted, which may result in more applications requiring a business necessity justification.

10.4 Will foreign language requirements be permitted?

Yes, if business necessity can be demonstrated. Business necessity for a foreign language requirement may be demonstrated based on the (1) the nature of the occupation (e.g., a translator) and (2) the need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English, as documented by criteria specifically set forth in the regulation.

10.5 Will combinations of duties still be permitted?

The final PERM regulation, adopting new terminology, will permit “combinations of occupations” in certain circumstances. An employer may justify such combinations if it can demonstrate at least one of the following: (1) it has normally employed workers in the combination of occupations set forth in the labor certification; and/or (2) workers customarily perform the combination of occupations in the area of intended employment; and/or (3) the combination job opportunity is based on a business necessity.
Current DOL policy permits a Regional Certifying Officer to consider the reasonableness of the job duties when an employer combines two traditionally separate jobs into one position. If DOL determines that a job offer unreasonably combines duties from two distinct job classifications, then the employer may be required to justify the business necessity of the proposed duties, using the business necessity standards discussed above.

10.6 Does the final rule permit the use of alternative experience requirements?

Yes. The proposed rule would have completely eliminated the use of alternative requirements for the job opportunity set forth in the labor certification. Recognizing that there may be more than one possible means by which an applicant can gain the skills required to perform a job, the final PERM regulation allows the employer to specify alternative requirements as long as they are substantially equivalent to the primary job requirements with respect to whether the applicant can perform the job duties in a reasonable manner, adopting the standards set forth by BALCA in Matter of Francis Kellogg, 94-INA-465 (February 2, 1998) (en banc). However, in cases where the employer already employs the foreign national beneficiary of the labor certification, the final rule poses some restrictions on the employer’s ability to accept alternative requirements. If the foreign national does not meet the primary requirements for the job, and only “potentially qualifies” for the position based on the alternative requirements, certification will be denied as improperly tailored to the foreign national unless the application specifies that any suitable combination of education, training or experience is acceptable.

10.7 Does the rule affect an employer’s ability to hire a foreign national who has an ownership role in a company?

Yes. When an employer seeks labor certification for a foreign national who may be in a position to influence hiring decisions or who has such a dominant role in, or close personal relationship with the employer and/or employer's business that it is unlikely that the employer would replace the individual with a qualified U.S. applicant—such as where the employer is a closely held corporation or partnership in which the foreign national has an ownership interest, where there is a familial relationship between the foreign national and the employer’s stockholders, corporate officers, incorporators or partners, or where the foreign national is one of a small number of employees – the employer may be required to demonstrate that a bona fide job opportunity exists. BALCA decisions have allowed Certifying Officers to determine that the job opportunity in such situations has not been clearly open to any qualified U.S. worker. The final rule specifies the types of documentation the employer must be prepared to furnish the Certifying Officer during an audit to evaluate the employer's good faith attempt to recruit U.S. workers. In determining whether the job is subject to the foreign national’s influence or control, the DOL will evaluate the totality of the employer’s circumstances. No single factor (such as familial relationship or the size of the employer) shall be controlling.