Life for individuals pursuing IT related positions may have just gotten even more stressful. In recent weeks, there have been numerous reports of PERM applications being rejected for having “overly broad” educational requirements. This development is concerning in several ways. First of these being that otherwise qualified individuals are being rejected under poor reasoning. DOL currently maintains the position that due to the breadth of engineering degrees, simply holding a degree in engineering does not qualify an individual for certain positions.
In prior years, a degree in engineering was considered a viable and equivalent degree for IT professional related positions. In fact, even under current conditions, there are several government agencies (DOL included) in which a degree in engineering is an acceptable educational background. A valid question may be – how can government agencies be advertising these types of positions while DOL is denying these types of PERM petitions?
DOL’s Point of View
It could be argued that the logic behind DOL’s decision making regarding employer’s intent is flawed. The actual denial from DOL contains the following prose:
“[T]the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of ______, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a [Computer Systems Analyst]”
Again, by re-examining DOL’s specific chosen language, we can see that the counter-argument posits that the amount of variation in an “engineering” degree makes It impossible for DOL to determine whether an individual as “qualified”. Due to the employer’s broad educational requirement, the Certifying Officer is unable to determine whether these requirements are “unduly restrictive”. This results in a reasoning that deems any engineering degree as being unqualified. Moreover, this practice actually contradicts DOL’s practice of discouraging employer’s from “tailoring” ads to a specific, pre-determined candidate. According to DOL, the position requirements are “overly broad” thus, making it “unduly restrictive” – a perfect example of a circular argument.
The current situation is concerning because of the vast amount of PERM applications which have been designed in a similar manner to those currently receiving rejections. It is not uncommon for employers to draft ads in a broad manner in hopes of attracting the most qualified/talented individual. Further complicating this situation is how time sensitive PERM cases are (typically averaging 4-6 months to prepare and/or alter correctly with Prevailing Wage Determination).
Deciding what to do upon receiving a denial notice can be a daunting and intimidating decision. Again, time presents itself as an important variable. Currently, employers are solely given a 30 day window to request a review of a denied case and currently it is unclear whether BALCA will support denial appeals for this sort of situation.
What to do Next?
When deciding whether or not to re-file, it is important to take priority dates into account as they effect certain nationals more significantly than others. For example, an employee who is an Indian national would benefit from an appeal as they would retain the priority date. However, this circumstance is highly-generalized and ALL cases should do through a thorough professional legal review.
Whether these types of decisions will continue to be handed out is uncertain as this is a fairly new phenomena. However, Pride Immigration Law Firm PLLC will be monitoring the situation and providing updates as they develop.
Beeraj Patel, Esq.
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