Recent O*NET Updates May Impact PERM and H-1B Filings

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:

SOC Code	SOC Title	Job Zone Change
15-1299.08	Computer Systems Engineers/Architects	Downgraded from Job Zone 4 to Job Zone 3
19-1022	Microbiologists	Downgraded from Job Zone 5 to Job Zone 4
19-2032	Materials Scientists	Downgraded from Job Zone 5 to Job Zone 4
15-1299.02	Geographic Information Systems Technologists and Technicians	Downgraded from Job Zone 4 to Job Zone 3
13-1041	Compliance Officers	Upgraded from Job Zone 3 to Job Zone 4

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:

Job Zone	Preparation Level	Specific Vocational Preparation Range	Education
1	Little or no preparation needed	Below 4.0	Some of these occupations may require a high school diploma or GED certificate
2	Some preparation Needed	4.0 to < 6.0	These occupations usually require a high school diploma
3	Medium preparation needed	6.0 to < 7.0	Most occupations in this zone require training in vocational schools, related on-the-job experience, or an associate’s degree
4	Considerable preparation needed	7.0 to < 8.0	Most of these occupations require a four-year bachelor’s degree, but some do not
5	Extensive preparation needed	8.0 and above	Most of these occupations require graduate school

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.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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