On Mar 23 2007

Immigration Lawyers Face an Ever-Changing Job Classification System

Attorneys working in the area of administrative law are well versed in negotiating the ever-increasing intricacies of agency memoranda, manuals, and other 'non-binding' agency materials when advising clients subject to regulatory programs.

The deference of courts to these agency interpretive statements is a familiar problem in this area. But, what happens where an agency’s regulation is ‘interpreted’ or based on a non-binding agency program that is subject to frequent changes? This complex world of interconnected intra-agency programs is standard fare for immigration lawyers working with the U.S. Department of Labor’s (DOL) alien labor certification regime, which sets forth requirements for employers intending permanent employment of foreign nationals in occupations
for which sufficient U.S. workers are not available.

The DOL recently published a new rule overhauling much of the labor certification program that had previously been in place for many years. Of particular concern are the new standards for determining whether the employer’s job duties and requirements for the position for which the employer intends to hire a foreign national are ‘normal’ for that occupation. Employers intending to sponsor foreign nationals for permanent positions are only permitted to set forth job requirements for those positions that fall within a specified qualitative and quantitative range. Although the DOL had similar standards under the old regulation, the new alien labor certification program is based on the Occupational Information Network (O*NET), a job classification system recently developed by the Employment and Training Administration (ETA).

The O*NET system replaced a long-established DOL publication, the Dictionary of Occupational Titles (DOT). Beginning in the 1990s, ETA sought to replace the DOT with a system based on a new occupational ‘paradigm’ that reflected the working conditions of the post-industrial, information-aged economy. Several important changes emerged from the new O*NET paradigm. DOT listed some 12,000 jobs, but O*NET was reduced to approximately 1,100 ‘essential’ occupations. Although fewer jobs were listed, they were to reflect current occupational developments. More significantly, to capture the rapidly changing economic conditions of post-industrial society, the new O*NET system was designed to collect occupational information through a random sampling of employers on a periodic basis, such that O*NET would be up-dated every year with information relating to, among other things, task descriptions and skill and educational requirements. The O*NET data collection cycle is far more extensive than the old DOT system, which had not undergone a serious change since the 1970s.

The goal of O*NET is to provide an overview of occupational information and to assist students and job seekers looking to choose or change careers. Undoubtedly, O*NET’s on-line availability and recent occupational data provides a wealth of information for recent graduates looking to enter the workforce and for employees looking to enhance their education and skill levels for purposes of career change or career enhancement. Yet, these training goals do not fit well within the labor certification arena, and the new O*NET data has resulted in frustration and confusion for employers attempting fit their longstanding business practices within O*NET’s new definition of ‘normal.’

At least three major problems face employers using O*NET seeking a labor certification for their job opportunity. First, O*NET does not fare very well as a tool for determining the normal occupational requirements for employees at the higher levels of their occupation, so it is not very useful for purposes of determining the outer limits of occupational qualifications that employers may set forth as a pre-requisite for taking up advanced-level positions. For example, O*NET specifies that employers may require 2-4 years of experience and/or education for Computer Programmer positions. This means that all employers, no matter at what level in their organizational hierarchy, may require at most either 4 year of experience, or 2 years of experience plus a Bachelor’s degree, or a Master’s degree for a Computer Programmer position that is the subject of a labor certification application. Unless the employer can justify that the position is at the management level, the employer is confined to the experience and education limitations set forth in the O*NET for computer programmers. Of course, this will make life exceedingly difficult for an employer wishing to hire a qualified foreign national for an upper-level (non-management) position requiring five years of experience plus a Bachelor’s degree, for example. In addition, the employer may have difficulty setting forth qualitative requirements, such as particular computer languages, that do not appear in the O*NET job description for computer programmers.

A second major problem confronting employers with labor certification applications is the overall reduction of experience and education ratings for occupations listed in O*NET. Although O*NET was initially developed from some of the information listed in DOT, many of the resulting 1,100 occupations listed in O*NET were given ratings significantly lower than corresponding occupations in the DOT. For example, under the DOT, an accountant was determined to require at most 10 years of experience and/or education. Under O*NET, the ‘normal’ requirement for accountants is limited to at most 4 years of experience and/or education.

A third major problem in the labor certification arena involves O*NET’s ever-changing data. The fact that O*NET data fluctuates twice a year makes it difficult for employers to predict whether their job requirements will be considered ‘normal’ throughout the labor certification process, which could take up to six months in initial preparation. For one release cycle, O*NET may show that the employer’s job requirements are acceptable, but under a subsequent release cycle the employer’s requirements may appear to be in excess of what O*NET lists as ‘normal’ for that occupation. For example, under O*NET 7.0 (Dec. 2004) Nuclear Engineers were determined to require over 10 years of experience and/or education, but under O*NET 8.0 (July 2005) the same occupation now requires at most 4 years of experience and/or education.

Determining whether the employer’s proposed job requirements are normal is the base-line for developing a legal strategy for labor certification cases. Yet, given the complexities of the O*NET system, developing a solid strategy may be an on-going and indeterminate process. Ultimately, the immigration practitioner may need to make greater use of the regulatory ‘escape’ clause for labor certification cases in order to avoid the inevitable pitfalls of the shifting O*NET data. The DOL regulations provide that an employer can justify abnormal job requirements only where supported by ‘business necessity.’ This justification is established where an employer demonstrates that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

The business necessity justification has a long administrative history. It was first developed by administrative law judges in 1989, was consistently employed by the DOL in subsequent adjudications, and has now been incorporated into the new regulation (with a minor change). Of course, recognizing when a business necessity argument may be required is only part of the problem. Once business necessity is used to go beyond O*NET, the immigration practitioner will need to call upon a long history of administrative decisional law to determine the precise argumentation and supporting documentation necessary to establish the employer’s claim. Administrative case law is riddled with examples of unfortunate employers who failed to meet the established standard. In the current regulatory environment, these standards will be even more significant, because failing to provide the proper documentation in support of a business necessity claim will result in significant administrative sanctions for the employer.

With the new alien labor certification system, employers will face a new austerity in hiring skilled foreign nationals for permanent positions. The discrepancy between two different regulatory programs of the DOL pertaining to the labor certifications has opened the process to confusion and instability. Although some options remain open, the wary employer will call upon experienced counsel to marshal the relevant facts and documentation to avoid administrative pitfalls.