At our next telephonic conference, on December 16th, we will be discussing restrictive requirements, among other topics.

I promised Nathan Waxman, our speaker on this subject, to present some questions for his consideration. Here are the questions:

Job requirements normally required for the occupation. These must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*Net Job Zones. If the job requirements do exceed these levels, the employer must show a business necessity by demonstrating the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.

1. What happens if the SVP levels in the O*Net Job Zones are not correct? Does the employer challenge the O*Net system itself or just prove business necessity?
2. Give an example of a job which is listed in the wrong O*Net Job Zone
3. Explain exactly how to use the two-prong business necessity test.
4. Will the Employer definitely be audited, if he chooses requirements in excess of the SVP for that job?
5. Does the PERM business necessity test follow a specific BALCA Case?  If so, which one?
6. How does the test for business necessity for language requirements differ from the test for requirements in excess of the O*Net?
7. Are there jobs with language requirements that do not require a showing of business necessity?
8. Does the language business necessity test follow a specific BALCA Case?
9. Is Employer Preference the same as Restrictive Requirements?

Combination of Occupations is not permitted. If the job involves a combination of occupations, the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination is based on a business necessity. Combination of occupations can be documented by position descriptions and relevant payroll records, and/or letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment, and/or documentation that the combination occupation arises from a business necessity.

1. How does the O*Net, with its approximately 1,000 occupations impact on the issue of combinations differently than the old DOT, with more than 10,000 occupations?
2. Give some examples (war stories) of job descriptions which were found unacceptable under the pre-PERM Regulation.
3. How does the fact that SWA's no longer play a role in the processing of labor certifications influence this issue?
4. Which of the above tests was rarely successful under pre-PERM?
5. Is the business necessity test for Combination of Occupations the same as the test for requirements that exceed the SVP levels in the O*Net Job Zones?

Alternative Experience Requirements. These requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and if the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

1. Is Kellogg alive or dead?
2. Is the Kellogg test "silly"?
3. How does one define the word "suitable" in the Magic Language?
4. Does the Magic Language cure all?
5. Should the Magic Language be used in all cases, even though not required?

Actual Minimum Requirements.

The job requirements as described must represent the employer's actual minimum requirements.

1. How does one determine the employer's actual minimum requirements? Is there such a standard?

The employer must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity.

1. What is the difference between "job" and "occupation"?

If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. The employer cannot require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless: (i) The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or (ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

For paragraph (i) above, the term "employer" means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at Sec. 656.3.

1. What is the regulatory definition of employer at Sec. 656.3?
2. Does it make any difference whether the employer contracted the contract worker directly or whether the contract worker was contracted through a third party?

A "substantially comparable" job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

1. What is the best way to document that a position is not substantially comparable to another position? Compare the documentation in different columns in a spread sheet? Or write a detailed narrative describing the documentation?
2. Is the feasibility test a viable option?

In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants.

1. Should the above be read "unless the employer offers similar education or training...."?
2. What happens if the employee obtains education or training at his or her own expense while working for the employer with an incentive for higher pay?

Layoffs. If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice. For purposes of the above, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

1. What are essential duties and what are non-essential duties?
2. How should the term "employer" defined for purposes of layoffs?

Alien influence and control over job opportunity. If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers....

1. How does the Employer prove a bona fide job opportunity?
2. How do you define "family member" ?

And so, these are the questions. Each savant may have his or her own opinion as to the correct answers. We will explore these during our teleconference.