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< Back to current issue of Immigration Daily

Citations for ILW.COM's Seminar
PERM For Experts
Session 2 held on April 12

Questions

  1. Issues regarding the SWAs were raised and how they differ from state-to-state in application and format. An issue I have seen is the SWA form that requires you to enter a minimum degree and minimum years of experience for the position. For positions that are advertised with alternative requirements, this creates an issue. If the requirements are MS+3 or BS+5, and on the SWA you put min. reqs. as a BS + 5, you are listing more experience than is required for one of the requirements. But if you list MS+3 as the min reqs, you are listing a higher degree (MS over BS) than could be required in the alternative requirements. Even though the description of the ad discusses the alternative requirements in detail, what is advisable to enter in the mandatory SWA fields? Either/or of BS+5/MS+3, or BS and 3 since those are the minimum requirements of either alternative requirement?
  2. Resumes: The regulations seem to clearly state only resumes received through the process required by the employer need to be considered. If the employer clearly states resumes must be submitted via mail, but they still receive numerous resumes through the SWA online submission for the specific job ad, must those applications be considered to maintain recruitment in good faith? Even with instructions clearly stated, the majority of applicants continue to ignore the instructions and submit online applications.

Joel Stewart's Answers

  1. The DOL uses the primary requirements to determine the prevailing wage, and it appears that the DOL regulations and the PERM Form 9089 focuses on the employer's primary requirements and not on the alternate. Review of the alternate requirements depends on a separate, Kellogg analysis, but the alternate requirements do not "stand alone" as independent requirements. Therefore, when the SWA does not have an alternate requirement box available on the job order form, the Employer should list the primary requirements, not the alternate. However, alternate requirements may sometimes be listed on SWA forms in other boxes like "special requirements," or if none, in another appropriate box, and if none, then the primary and alternate requirements may be stated in the same box as the job description. Nevertheless, if the SWA does not require or request the alternate requirements, employers may simply put the primary requirements on the SWA form, under the theory that employers are always required to consider alternate requirements.
  2. Employers always have the responsibility to investigate if workers are qualified to perform the job duties. This involves the responsibility to determine if the workers are qualified under the suitable combination of experience, education or training analysis, and the responsibility extends to determine if the workers may be trained to perform the duties within a reasonable period of time. Therefore, employers who do not interview workers whose resumes do not clearly show they are required, but whose resumes indicate that they might be qualified based on the combination of skills or training analyses, do so at their peril.


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