DOL Denies PERM Applications Due to Overly Broad Education Requirements

Our office is getting reports from clients, readers and colleagues from other firms that there is an alarming trend in recent PERM Labor Certification application denials due to an overly broad education requirement.    Specifically, DOL denies PERM applications, usually after an audit,  with the stated reason that the “educational requirements are too broad, and thus, the Certifying Officer is unable to determine the employer’s actual minimum requirements for the job opportunity.”   In several reported cases, DOL used this identical language to deny PERM applications where the job requirements included a degree in the fields of “Engineering” or “Business.”

Specifics on the PERM Denial Rationale

In its justification for the denials, DOL argues that a degree in Engineering or Business are simply so broad that an Engineer in a field unrelated to the employer’s needs (for example, for a Computer Systems Analyst position) would not be considered.   We are aware that there are similar denials where the position requires a degree in “Business.”  Specifically, the PERM denial letter reads:

[T]the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Programmer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a [Computer Systems Analyst].

For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the [Computer Systems Analyst] position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles.

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Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree (emphasis in original) would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.

I think it is fair to say that many other immigration practitioners and employers are troubled by such misinterpretation of an employer’s intent.    Also, in a way, it is a contradiction of DOL’s own PERM policy to discourage employers from narrowly tailoring the job description to fit a specific candidate.     DOL is claiming that because the job requirements are too broad, the position may be unduly restrictive which is a circular argument.

Trend or a Temporary Event?

This kind of denials have started to be issued over the past few weeks so we do not yet have great data to work with and make conclusions as to whether this is a new DOL “guidance by denial” or a situation which would be corrected internally at DOL and so that PERM applications drafted in this way would continue to be approved as they have been in the past.

Unfortunately, there are thousands of PERM applications out there where the requirements may be drafted in a similar way as it is not uncommon for employers to draft job requirements in a way to attract the best possible talent.  Also, unfortunately, the mechanics of the PERM process make it very hard to adjust quickly — it takes often 4-6 months to prepare and file a PERM process due to the prevailing wage and advertising requirements.

We will continue monitoring this PERM denial trend and will report as we hear more on the topic, hopefully directly from DOL.

What To Do with the Denied PERM Cases – Appeal or Refile?

Before evaluating the options for appeal or refiling, it is important to understand that the appeal process is very time-sensitive.   Employers are given 30 days from the date of the PERM denial to file request for review the denial determination.    This, an employer who wishes to preserve its appeal options has a very limited period to file a request for review.    As of right now, it is unclear whether BALCA would ultimately support this kind of a denial reason.  Unfortunately, it would take many months (or few years) to hear from BALCA as to whether this kind of educational requirements are permitted.

In the meantime, we urge employers to review each individual employee’s circumstances in order to evaluate the best options.   Generally, for employees who are on H-1B status and are approaching their 6th year H-1B maximum, an appeal is a very good (if not required) option.      A refiling may make sense for employees who have sufficient H-1B time before reaching the 6th year limit.   Also, the employer should consider the employee’s country of nationality and whether or not an earlier priority date is critical.    For example, an Indian-national employee would certainly benefit from an appeal (which would hopefully be successful) because they would retain the priority date.   On the other hand, an employee who is a “rest of the world” national under EB-2 would perhaps not need to worry about retaining priority date (as EB-2 ROW is current) and would perhaps benefit from a refiling.

These are very case general strategy pointers — we are happy to help evaluate this kind of (or related) PERM denials and provide consultation on the best options.

Conclusion

We are hopeful that this trend of PERM denials would turn out to be a temporary blip and that many of the denied PERM cases would be approved on appeal.      We will continue monitoring this topic over the next few weeks to determine whether there are any long-term trends such as substantive rule guidance as a result of these denials.   Have you received this kind of a PERM denial?   Let us know — we will be also happy to provide an initial consultation to evaluate further options or assist in an appeal or refiling process.     Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.