Question: I understand that PERM applications will be able to be filed starting at the end of March. Also, I understand that there has to be pre-recruitment prior to the filing of the PERM application. My question is whether the process to see whether an applicant is qualified or not qualified for the position is the same. What must be done and what must be documented?

Answer: Prior to PERM, the applicant had to meet any and all requirements for the position. If they did not meet any requirement in particular, then they were not qualified for the position and the employer would be able to disqualify the applicant.

However, there is a new provision in the PERM requirements that do make it more difficult to show that a potential employee is disqualified for the position. Under PERM, if the potential applicant does not have each and every one of the requirements of the position, he or she cannot immediately be disqualified. The PERM regulations state that if the potential employee could be trained on the job in a reasonable amount of time that he or she cannot be disqualified and they must be considered to be eligible for the position.

Question: If they are eligible for the position, what exactly does that mean?

Answer: It means that the PERM labor certification is over and that the position cannot be certified because there are available U.S. workers for the position.

Question: What can be done to avoid this happening?

Answer: There will be several ways to try to avoid this. However, most clearly would be the attempt to make the position more difficult and to make the position so that it had more qualifications necessary. The employer would have to try to show that the potential employee could not be trained in a reasonable amount of time. While it is still somewhat early to determine what may and may not work, it would seem that if the employer was a smaller employer, that they may not have the time or resources to train a person for the position. It is entirely plausible that if a small employer has to train a new person, that by time that person is up and running that the business of the employer may be suffering. Also, the higher the qualifications needed in order to perform the positions, the harder it will be to show that they can be immediately trained or trained within a reasonable time. There should be more specificity in the job. For example, instead of stating that there should be a chef. It should state that there should be a chef with Middle Eastern or Asian experience. It should state the type of dishes necessary for the person to accurately perform the duties of the position.

While we are in new territory here, if the PERM is prepared carefully, it still appears to be a much better alternative than the old RIR Labor Certification system.