This is a recent Department of Labor appeal we would like those in the local community to take a look at. The case involves the way in which experience is defined as it pertains to time on the job vs. time spent in school.
In April of 2009 a Certifying Officer (CO) denied an employer's request for
Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was that the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).
Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.
In a request for reconsideration on May 1, 2009, the Employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The Employer felt the year of education and job experience was enough to equal 17 years of overall experience.
On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification issues which a bachelor's degree is equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.
That meant the Employer's formula was not "substantially equivalent" to the primary requirements of the job.
The case was turned over to a judge with the Board of Alien Labor Certification Appeals. After outlining the way the PERM process is supposed to function - "exacting" rather than drawn-out - the judge would ultimately find for the CO.
The BALCA judge pointed out the job listing must have requirements that represent the true minimum for the position. The idea being that the an employer is not supposed to hold U.S. workers to more stringent qualifications than the alien.
The judge pointed out that the "Employer's alternative requirements of 17 years of experience are not substantially equivalent to the primary requirements of Bachelor's Degree plus five years experience, or 7 years experience." It was also pointed out that ". . .according to Employer's own formula for equivalent experience, an applicant without a Bachelor's Degree and five years experience would be required to have 17 years . . . which is a gross departure from the 7 year equivalent requirement."
The ruling was therefore that it was "fatal" to the application that the alternative requirements were not equal to the primary requirements.
