The U.S. Department of Labor (DOL) recently updated its Occupational Information Network (O*NET), resulting in readjustments to the “Job Zones”—five articulated categories correlated with the levels of education, training, and work experience necessary to perform certain occupations—that specific occupations fall under. These readjustments may adversely affect PERM and H-1B stakeholders.

Quick Hits

• The Occupational Information Network (O*NET), developed under the sponsorship of the U.S. Department of Labor’s Employment and Training Administration (ETA) through a grant to the North Carolina Department of Commerce, contains hundreds of standardized and occupation-specific descriptors for almost 1,000 occupations covering the entire U.S. economy.
• Occupational expert analysts assign each occupation in the O*NET-SOC [standard occupational classification] taxonomy to one of five Job Zones to categorize occupations based on their associated levels of education, experience, and training.
• The DOL’s Office of Foreign Labor Certification (OFLC) relies on the O*NET database to administer the PERM labor certification program and Labor Condition Application (LCA) program.

The DOL’s O*NET program was updated on August 26, 2024, and again on November 19, 2024. The August 2024 update covered 101 occupations; the November 2024 update covered an additional 21 occupations.

Some highlights from each O*NET update that may impact stakeholders are listed below for reference:

As noted in the Job Zone chart below, occupations for which the Job Zone was reduced from 4 to 3 can impact PERM and H-1B cases:

H-1B Implications

The H-1B, H-1B1, and E-3 nonimmigrant classifications are reserved for individuals performing services in a specialty occupation that requires the attainment of a bachelor’s degree or higher degree as a minimum requirement for entry into the occupation.

Utilizing or continuing to utilize an occupational category that was downgraded to Job Zone 3 may invite higher scrutiny from U.S. Citizenship and Immigration Services (USCIS) or U.S. consulates since a bachelor’s degree is not normally required for these occupations.

PERM Labor Certification Implications

On prevailing wage requests, occupations that were downgraded to Job Zone 4 or 3 may result in higher prevailing wage assessments by the National Prevailing Wage Center if minimum education and experience requirements are not considered normal to the occupation.

Likewise, since a bachelor’s degree is equivalent to two years of specific vocational preparation (SVP), Job Zone 3 occupations that require anything beyond a bachelor’s degree trigger a “business necessity” justification on a PERM application and may increase the likelihood of an audit request. However, with respect to the number of advertisements required for a PERM application, it is the DOL’s Appendix A list of professional occupations that controls, not the Job Zone or O*NET level.

It is worth noting that the DOL confirmed during the American Immigration Lawyers Association (AILA) 2024 Spring CLE Conference and Webcast that the version of O*NET in effect at the time a prevailing wage determination is issued controls when determining how to respond to item G.9 on Form ETA-9089, which asks whether the job requirements exceed the SVP level assigned to the occupation as shown in the O*NET Job Zones.

Key Takeaways

Individuals likely to be most impacted by these updates are H-1B, H-1B1, and E-3 visa holders whose prior petitions or applications were supported by an LCA utilizing an SOC code that was recently downgraded to a Job Zone 3 occupation. Despite its deference policy, USCIS is not required to defer to previously favorable eligibility determinations in certain instances, such as when there has been a material change in circumstances or eligibility, or when new material information adversely impacts eligibility. This, in turn, might result in a higher risk of a Request for Evidence or a denial from USCIS.