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The U.S. Department of Labor (DOL) protects the American

workforce by reviewing applications from employers who wish to hire

foreign labor after conducting a bona-fide recruitment effort with

fair wages in areas of intended employment. The program, known as

PERM, is a 2005 update of an older law created that goes back to

the 1970’s.

The PERM Rule, sensitive to the need of home-grown workers,

involves complex and sometimes confusing guidance that is used in

the adjudication process, and denials will issue when employers

fall astray. Based on recent trends, employers are likely to

encounter objections if they do not adequately document why U.S.

job applicants cannot acquire the skills necessary to perform the

job during a reasonable period of on-the-job training.

Although the term ‘reasonable’, not defined by law, is

generally understood to mean specific skills such as diverse IT

technologies which are easily adaptable by otherwise qualified

workers or cross industry management positions. In 2019, DOL audits

often requested documentation from employers to prove that U.S.

workers who were rejected could not have been deemed qualified with

a reasonable period of on-the-job training.

Although it is not easy to prove a negative, employers may be

able to provide detailed statements, with or without corroborating

documentation, to prove the inability to train within a reasonable

period of time. In one case decided by the Board of Alien Labor

Certification Appeals, Kentrox, Inc., 2012-PER-038 (May 22,

2014), the employer provided a detailed explanation of

technical matters involved in the firm’s products that would

prevent the firm from training a new worker. The employer’s

statement was accepted as sufficient documentary evidence to meet

the burden of proof. But since this case was decided during a

period of historic low unemployment, it may be assumed that the

employer’s opinion in a period of high unemployment will be

more strictly construed.

Another more familiar part of the PERM Rule relates to the

consideration of US job applicants who do not meet the stated

minimum requirements but may be able to perform the job duties in a

minimally qualified manner based on a combination of experience,

education, and training. This notion is deeply imbedded in labor

certification practice and often quoted as official DOL policy.

Often overlooked is an important reference material called the

Revised November 2009 Employment and Training Administration

Employment and Prevailing Wage Determination Policy Guidance.

This memorandum, which should be on the desktop of every PERM

stakeholder, is replete with reference to all sorts of

training.

In conclusion, when conducting PERM recruitment, all U.S.

workers who should be granted the benefit of the doubt when

determining qualifications, and employers must explain why they

cannot be trained within a reasonable period. And employers dare

not forget that the name of the federal agency reviewing their PERM

applications is the Employment and Training

Administration.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.