Can Employers Require Un-Quantified Skill in Perm Application?

job_oppoIn the application of labor certification by PERM form ETA 9089, the employer needs to list required job qualifications for the job position. When employers list un-quantified skill experience requirements in PERM form ETA 9089 H.14, a question arises as to whether it conforms to the labor certification regulations? There have been cases that were denied because of non-quantified experience is listed in Section H.14 of the ETA 9089. What is un-quantified skill? For example, a requirement of being “proficient” in using spreadsheet is an un-quantified skill as job requirement.

In the case of Matter of Smartzip Analytics, the employer needed that the minimum requirements for the job position were a Bachelor’s degree and 60 months of experience in the job offered, or 60 months of experience in a related occupation. Further, the employer indicated in H.14 that specific skills were required for the job opportunity as follows:

Experience must include experience with: delivering native mobile products at scale; publishing iOS application; Objective-C, iOS SDK, Cocoa Touch, Xcode, Interface Builder, and Auto-Layout; knowledge of Apple Human Interface Guidelines, Java.

The Certifying Officer (CO) denied the labor certification application, and found that Section K did not confirm that the beneficiary possessed 60 months of experience in each of the skills listed in H.14 and that; as such, the employer was willing to hire an employee that did not meet the actual minimum requirements of the job opportunity. The employer requested reconsideration, noting that the CO incorrectly assumed that the employer required 60 months of experience in each of the required skills. The CO upheld the denial, finding that because the employer did not quantify the experience required for each of the skills in H.14, the DOL used the specific amount of experience (60 months) required in H.6 and H.10 of the form to gauge the amount of experience actually required.

The employer appealed. On appeal, the Board of Alien Labor Certification Appeals (BALCA) determined that H.14 does not solicit a duration requirement for the specific skills required and found that an application cannot be denied for failing to provide a duration requirement in H.14 without legally sufficient notice of a requirement to do so.

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One Comment

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