PERM Labor Certificate – The Message of Microsoft

PERM (Labor Certification Application) is an initial employer-sponsored green card process that foreign professional workers have to go through if they wish to gain permanent residency through their employment in the United States, such as EB2 or EB3 green cards.  It is used as a test of the employment market in a specific location for whether there are any other U.S. workers for a specified position that requires specific skills and levels of experience are available, qualified and willing to take up such position.  Employer must prove that the job position offered is one that no other sufficient U.S. workers are available, able, willing and qualified to fulfill and the prospective non-U.S. employee is the only qualified and available person for such a position.

As experienced PERM immigration lawyer in Chicago, one of the common pitfalls for PERM applications are making a particular set of job duties too narrow or exclusive to limit the amount of workers qualified for the position (i.e. being overly restrictive).  On October 16, 2012 it almost appears that the opposite occurred in Microsoft Corporation on behalf of Boerlage, BALCA Case No.:   2011-PER-02563.  In Microsoft, the Employer stated that it would accept a “Bachelor’s degree, or foreign educational equivalent, in Computer Science, Science, Engineering, Mathematic, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience.”  Their PERM application (Form 9098) further indicated that the Employer would accept an alternative combination of experience.  In particular, the Employer stated that it would accept “three-years of work experience for every year missing from a four-year college degree.”

 STEM, PERM Labor Certificate and BALCA

A plain interpretation of this situation would seem to a broader form of recruitment.  In other words, allowing alternative forms of recruitment would open the position up to a larger potential audience of U.S. workers.  For example, someone with 2 years of college experience in Computer Science and 6 years and 6 months of experience would be a fit as opposed to only applicants with a Bachelor’s Degree and 6 months experience.  In other words, the Employer was inviting a wider audience of applicants that could potentially show that there are available U.S. workers derailing the PERM Application.

Nevertheless PERM cases are not just a test of the labor market, but rather a test of what the employer did, and how the employer did it.  The job description can pass muster and not be overly restrictive, but because of a technical glitch or just a mere mis-communication, the case can be declined for Certification.  BALCA stated:

 Alternative experience for PERM, Form 9089

In the case at hand, “the analysis mandated by the regulations is whether the alternate experience requirement is substantially equivalent to the primary requirements of the position and not whether the primary education requirement is substantially equivalent to the alternate means of obtaining the required degree.  The employer’s primary requirements were a Bachelor’s degree and six months or experience (SVP level 7) and alternatively three years of experience for every year of education missing from a Bachelor’s degree.  As the CO found in his decision on reconsideration, the alternative requirement of up to twelve years is not substantially equivalent to the primary requirement of a Bachelor’s degree and six months of experience.”  [Emphasis Added]

Clearly this is a mis-communication that likely should have been allowed to be clarified during an Audit.  My reading of the final decision is that UP to 12 years of experience (based on 3 years of experience = 1 year of college) is not the same as 4 years of college and 6 months of experience.  There are a couple of ways to read this, as an experienced Immigration Lawyer I like to give the employer the benefit of the doubt in that what they are actually saying is we want to widen the audience in our test for available U.S. workers and it is okay if you don’t have 4 years of college experience, it is ok if you only have 2 years of college experience, and it is even fine if you have no college experience, we just want SOME combination equating to a Bachelor’s Degree in computer science, etc…and 6 months of experience such as 2 years of college and 6 years and 6 months or more of experience.  The Department of Labor’s position is that you need to clearly communicate that exact equivalent positions.  Taking the middle of the road, I personally think that the Form 9089 may be bits too rigid whereby it does not allow an Immigration Lawyer to clearly articulate that they are looking for some combination of experience.  The practitioner in the Microsoft case did check off that a combination of alternative experience is acceptable.  However the issue appears to be up to 12 years is not the same 4 years of college AND 6 months of experience, and so the Department of Labor and BALCA’s interpretation are clear.  As mentioned at the beginning, showing up to 12 years of experience and any combination thereof is showing confidence by the PERM employer that there just aren’t available U.S. workers for this position.  To clear up the opportunity of ambiguity a clarification in the form would be helpful for practitioners as clearly there was great effort by the Employer to not be overly restrictive and open the position up to as wide of an audience that it reasonably could, which is the purpose of PERM or Labor Certification.

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