The Department of Labour (DOL) has long held the position that employers should not recruit for jobs requiring special skills or licences if US workers are available who could be easily trained. The training requirement is not absolute: the employer must merely show that a job applicant cannot be trained in a reasonable period of time.

The DOL has accepted plausible explanations from employers which assert that it may take a great deal of time or expense to train someone who does not possess a special skill. In one case, an employer applied for certification for a person with proficiency in Microsoft Excel and Access. Several US workers were rejected because they did not possess those skills.

The rule is that a US worker who applies for a job should not be rejected on the basis of his or her résumé, if he or she might qualify based on a combination of experience, education and training.

To defend the special skill requirement successfully, employers generally argue that job applicants did not list these skills on their résumés and that it would not be feasible for them to acquire the skills through on-the-job training.

The existence of special skill requirements may be documented by business necessity (ie, demonstrating that the job requirements are essential to perform the job duties).

As a matter of law, the employer's assessment of its own requirements and candidates' abilities to perform job duties with special skills takes priority over the opinion of the DOL, since employers are most qualified to make those decisions.

In recent months, the DOL has denied cases where the job skills were not quantified because they could not be properly measured; and if skill cannot be properly measured, the government cannot determine whether the requirements are reasonable and necessary.

The matter has been raised at recent meetings between the DOL, attorneys and employers, with the result that guidance will soon be published regarding the proper way to list special skills in job offers. Often, when no quantification is provided, the government will simply conclude that the skill must be documented by proving that the job applicant worked with that skill throughout the entire period of experience required in the job offer.

The other point of view is that the worker might have acquired the skill not by previous experience in the job, but by some other means (eg, special courses, training or life experience), and that the important issue in skill acquisition is not how long or by what means a person was trained, but whether the person actually possesses the necessary skill.

The general recommendation in Programme Electronic Review Management (PERM) cases is for employers to list only skills that are absolutely necessary to perform the job duties and by indicating, as far as possible, how the skills are directly related to the job duties. Even if PERM applications are not denied for lack of quantification, employers should be aware that it is difficult to assert that candidates are unqualified to perform the job if the skill requirements are not clearly stated in the job offer and if the job applicants are not interviewed to see if they are qualified – even when their résumés do not clearly indicate that they possess the necessary special skills.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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