An Employer recently lamented a PERM Denial. The Employer offered a position of Operations Manger with requirement of a Bachelor's Degree plus two years experience OR 12 years experience (in lieu of a Bachelor's Degree) plus two years experience in a PERM application.
The Employer reasoned that the DHS would use the 3-1 policy which stipulates that 3 years of experience may be used in lieu of each year of university level study to obtain a Bachelor's Degree Equivalence. The DHS rule permits an alien with no university degree or with partial completion of a university degree to qualify for an H-1b on the basis of progressive experience.
Unfortunately, the Employer did did not take into consideration that the DOL does not use the DHS standard. On the contrary, DOL's official policy is that years of education, work experience and training are on a par and interchangeable but only one a one for one basis, and not on a three for one basis.
The first two years of a bachelor's degree program provide only a generalized eduction, and the last two years provide a Specific Vocational Preparation (SVP). Consequently, a Bachelor's Degree, according to the DOL, is not equivalent not to 12 years of progressive experience, and not even to 4 years of experience, but only to two years of experience. Therefore, DOL holds that the "SVP" for a Bachelor's Degree is "2".
One might argue to DOL that the "SVP' formula should take into consideration that 3 years of experience might reasonably be required to qualify for one year of education, however, so far this argument has not been accepted. Interestingly, the Prevailing Wage Rule, which applies to both H-1B and PERM cases, provides a separate evaluation process for diplomas, experience and training, so that in some cases the attainment of a Bachelor's Degree is not used to raise the wage for the job offer to a higher prevailing wage level.
Although the O*NET adheres to DOL policy by specifying the SVP for each occupation, the O*NET typically states in vague language that an Employer might require a University Diploma and years of experience or training, but does not explain how to obtain an education equivalence based on years of progressive work experience.
In the instant case, the denial states, "The alternative requirements listed in group item Section H.8 of the ETA Form 9089 are nt substantially equivalent to the primary requirements listed in group items Section H.4 and/or Section H.6. Specifically, the employer's alternative combination of education and experience, a high school diploma and 12 years of experience, is not substantially equivalent to the employer's primary requirements of a Bachelor's degree and 24 months of experience....The formula used by the employer of 1 year of formal education equating to 3 years of work experience is not a formula used or accepted by the U.S. Department of Labor. Per the preamble fo the Federal Register, Volume 69, number 247, dated Monday, december 27, 2004, a Bachelor's degree is equivalent to 2 years of Specific Vocational Preparation. Authority for Denial: Per 20 Code of Federal Regulations 656.17(h)(4)i), alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought."
If you think the phrase "substantially equivalent"in this PERM denial suggests a Kellogg analysis, curb your enthusiasm!
In actual fact, the denial rests on a simple SVP analysis and not on the more complex analysis used to discourage tailoring of alternative requirements in a PERM application to meet the alien's qualifications.
Is there anything that can be done to appeal this denial?
The Employer would have to prove that its requirements of 12 years experience, even though in excess of SVP, are justified by business necessity. This might be possible, since the DHS has already taken for granted that an Employer may use a 3-1 analysis to obtain 12 years of experience in lieu of a University Diploma.
The testimony of an expert witness in the form of an opinion by a University Professor is required by DHS to establish the equivalence of three years experience for one year of university education. This same testimony might be used in a labor certification proceeding to prove that the job requirements as stated (12 years of experience in lieu of a four year Bachelor's Degree) are justified to perform the duties without the attainment of a degree.
Remember, since the Employer also requires two years of experience, the successful applicant, if not in possession of a Bachelor's Degree, would meet the Employer's minimum requirements by demonstrating 12 years of progressive experience plus another two years experience in the job duties. This would result in a total of 14 years.
