As previewed in my previous post, this essay will explore the mysterious realm of SVP (specific vocational preparation) codes as implemented by the O*NET JobZone classification system. Business Immigration practitioners have long understood the critical importance of SVP codes in establishing employment-based second preference (EB2) advanced degree education and experience qualifications normal to the occupation–particularly with the chronic waits experienced in skilled worker and professionals (EB3) category. Unfortunately, the chief authority analyzing JobZones to date, Matter of Wissen, Inc., 2009-PER-00405 (BALCA 2010), suffers from incomplete analysis, faulty logic, and self-contradiction.
Having come to the Law via mathematics has colored my approach to analyzing legal questions: do all parts “add up”? Does any part contradict any other part? Have the proper principles and “theorems” been applied? Does the result “make sense”? Four years ago, I had to analyze the meaning of O*NET JobZone Four for an EB2 labor certification application. Since then I have reused the explanation on multiple occasions with minor modifications. Then in April of 2010 came the Board of Alien Labor Certification Appeals (BALCA) decision in Matter of Wissen, Inc., supra, which clashed with my analysis by essentially deleting the SVP 8 category from JobZone Four. In an effort to raise awareness concerning the logical errors in the Wissen decision, I offer a post-Wissen version of my JobZone analysis (with single quotation marks from electronic filing format in portions).
Before turning to the analysis, however, let’s review SVP codes and O*NET JobZones:
Specific Vocational Preparation is defined as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.
This training may be acquired in a school, work, military, instructional, or vocational environment. It does not include the orientation time required of fully qualified worker to become accustomed to the special conditions of any new job. Specific vocational training includes: vocational education, apprenticeship training, in-plant training, on-the-job training, and essential experience in other jobs.
. . . .
The following is an explanation of the various level of specific vocational preparation:
SVP 1 - Short demonstration only
SVP 2 - Anything beyond short demonstration up to and including 1 month
SVP 3 - Over 1 month up to and including 3 months
SVP 4 - Over 3 months up to and including 6 months
SVP 5 - Over 6 months up to and including 1 year
SVP 6 - Over 1 year up to and including 2 years
SVP 7 - Over 2 years up to and including 4 years
SVP 8 - Over 4 years up to and including 10 years
SVP 9 - Over 10 years
The JobZone categories equate to SVP codes as follows:
JobZone One: Little or No Preparation Needed . . . SVP Range: Below 4.0
JobZone Two: Some Preparation Needed . . . SVP Range: 4.0 to < 6.0
JobZone Three: Medium Preparation Needed . . . SVP Range: 6.0 < 7.0
JobZone Four: Considerable Preparation Needed . . .SVP Range: 7.0 < 8.0
JobZone Five: Extensive Preparation Needed . . . SVP Range: 8.0 and above . . . .
The matter involved an occupation that fell under O*NET JobZone Four, requiring ‘considerable preparation’ and listing the ‘SVP Range: 7.0 < 8.0.’ The equivalent occupation in the Dictionary of Occupational Titles (DOT) carried an SVP code of 8, that is, a minimum of four years, up to ten years, of work-related skill, knowledge, or experience. This range includes a Master's degree plus up to 6 years of experience. Based on the ‘SVP Range: 7.0 < 8.0’ designation contained in the new JobZone rating system (literally meaning greater than level 7, up to level 8), this would include a range from a Bachelor's degree at the low end of SVP 7 through a Master's Degree plus up to, but not including, six years of experience at the SVP 8 level. The proposed minimum education and experience level of a Master’s degree and 5 years of experience for the position in question fell within this zone and was therefore within the job opportunity’s requirements normal for the occupation. How did I arrive at this conclusion?
First, a few general observations: All five JobZone categories cover multiple SVP codes. Each of these multiple SVP code groups overlaps with its adjacent JobZone groups. This suggests that the JobZone scheme is flexible and overlapping, rather than rigid and monolithic. In fact overlapping education and experience descriptions pervade the JobZone scheme, as will be seen. However, the effect of the Wissen holding, if applied to all JobZones, would be to strip them of their flexibility. The Wissen world of JobZones appears as follows:
JobZone One: Little or No Preparation Needed . . . SVP Range: 1-3
JobZone Two: Some Preparation Needed . . . SVP Range: 4 & 5
JobZone Three: Medium Preparation Needed . . . SVP Range: 6
JobZone Four: Considerable Preparation Needed . . .SVP Range: 7
JobZone Five: Extensive Preparation Needed . . . SVP Range: 8 & 9
No overlap. No flexibility. No mathematical or analytical basis. So let’s see what analysis shows.
The meaning of JobZone Four
The O*NET explanation of JobZone Four indicates ‘SVP Range: 7.0 < 8.0.’ At first glance, the meaning of the specified SVP Range of ‘7.0 < 8.0’ is unclear. The decimal notation is superfluous; SVP designations appear in whole integers from one to nine. The connecting symbol borrowed from mathematics means less than, that is, ‘seven is less than eight.’ Obviously, this notation was intended to convey something more than simply normal counting order. The word ‘Range’ implies more than a single point; thus, neither SVP 7 nor SVP 8 alone could be correct. Without both involved, there would be no range. Indeed, if the O*NET drafters intended only one SVP level for JobZone Four, inclusion of the other would serve no purpose, except to cause confusion. Thus a simple ‘less than’ symbol analysis–as relied on in Wissen–proves inadequate. However, when restated in algebraic terms, with x equal to the acceptable range of years of specific vocational preparation, the JobZone Four SVP Range formula takes on a plausible meaning:
7 < x < 8.
That is, x is greater than 7, and x is less than 8. But 7 and 8 are not just single mathematical values. Rather, they are symbols, each of which includes its own range of time values. So we are dealing with a numerical range of time ranges. Borrowing further from algebra by substituting the SVP time ranges represented by the symbols 7 and 8 into this restated formula, we achieve the following expression:
(over 2 years up to and including 4 years) < x < (over 4 years up to and including 10 years)
In strict mathematical terms, this formula describes a total continuum, where x, if it exists at all, is ever so tightly wedged somewhere between ‘4 years’ and ‘over 4 years.’ (4.00000001 years has already gone past x, the putative JobZone Four SVP value.) This yields a nonsensical result. But observing that the high end of the first element is continuous with the low end of the second element suggests that the JobZone ‘range’ in question should focus not on the adjacent ends of the two elements, but instead on the remote ends. This yields the following formula:
(over 2 years) < x < (up to and including 10 years)
Refining this expression to give effect to the inequality symbols, the formula for JobZone Four in terms of years of specific vocational preparation may be restated as follows:
2 years < x < 10 years
This means that the acceptable range of specific vocational preparation specified in JobZone Four encompasses from more than 2 years up to, but not including, 10 years.
From this specific algebraic inspection we may tentatively conclude that a range of ranges joined by an inequality function should encompass all of the values between the end points. Algebraic analysis shows that the normal value of x (the required level of specific vocational preparation) for any given JobZone Four occupation may fall between the lowest level of SVP 7 and the highest level of SVP 8, like the two ends of a football goalpost. The ‘ball’ (the required preparation for a given position) may pass anywhere between the ends of the goalpost (the low end of 7 and the high end of 8) and still ‘score.’ No other explanation of this official governmental notation makes sense. The range includes from more than two years to less than 10 years of specific vocational preparation–which encompasses a Master’s degree and 5 years, a total of 9 years of specific vocational preparation, within the ‘job opportunity’s requirements normal for the occupation.’ Therefore, the above analysis shows that the requirements for the job opportunity that prompted this inquiry lie within the normal range for this occupation, ‘SVP Range: 7.0 < 8.0,’ – or, more precisely, SVP Range = x, where SVP codes 7 < x < 8.
Confirmation by comparing other JobZones
Inspection of other SVP ranges appearing in the JobZones confirms this analysis and shows that the conclusion of the Certifying Officer ratified by the BALCA in Wissen, supra, erred in using the low end rather than the high end of SVP 8 as the top of the JobZone range. Analysis of similarly stated SVP ranges for JobZone Two (‘SVP Range: 4.0 to < 6.0’) and JobZone Three (‘SVP Range 6.0 < 7.0’) show both of these descriptions include experience, education, and training requirements that stretch from the lowest level of the lowest SVP number to the highest level of the highest SVP number within the specified range. JobZone Two includes a few months (SVP 4) to one year (SVP 5) of job training but ‘in some cases, an associate’s or bachelor’s degree (SVP 6) could be needed.’ This verbal description clearly indicates a range that encompasses all three listed SVP codes.
Likewise, the description of JobZone Three discusses three or four years of apprenticeship (SVP 7) or several years of vocational training (SVP 6), a bachelor’s degree (SVP 6), followed by one or two years of job training (SVP 7). Again, both SVP codes are necessary to cover the written description. This shows a pattern of intent on the part of the drafters of the O*Net Job Zones to utilize the entire specified range of SVP codes for each JobZone.
JobZone Four lists both a ‘four-year bachelor’s degree’ and a ‘minimum of two to four years of work-related experience. Wissen held that education and experience should be combined when determining the applicable SVP level. Wissen, slip op. at 6. If this is so, two years of specific vocational preparation for a bachelor’s degree plus four years of work-related experience, a total of six years of specific vocational preparation, falls within SVP code 8. Thus, even the internal logic of Wissen in determining the appropriate SVP level–that education and experience must be combined–contradicts its own conclusion that JobZone Four does not include SVP code 8. The Board in Wissen focused in error on the low end of SVP 8 as the ‘ceiling’ for JobZone Four and came to the erroneous conclusion: ‘Stated another way, the top end of the total preparation required must be less than an SVP of 8.0 (over 4 years and up to and including 10 years).’ Instead, they should have been looking at the upper end of SVP 8.
Therefore, paraphrasing Wissen, the proper description of JobZone Four should be: ‘Stated another way, the top end of the total preparation required must be less than the top end of SVP 8 (over 4 years and up to but not including 10 years).’ Wissen, slip op. at 6, with deletions and additions, emphasis added; compare original statement, infra, note 3.
Mathematical logic concludes that the JobZone Four SVP description follows the goalpost model: from, but not including, the low end of SVP 7, to, but not including, the high end of SVP 8. The structure and descriptions of the JobZone system of ranges confirms this conclusion. Finally, the previously assigned SVP code for the equivalent occupation listed in the Dictionary of Occupational Titles supports the conclusion–contrary to Wissen–that SVP 8 remains an equal partner with SVP 7 in O*NET JobZone Four.
Therefore, BALCA or the Department of Labor needs to step beyond Wissen to restore SVP 8 from the limbo of surplusage and to affirm a uniform, coherent application of the JobZone SVP categories that will withstand critical analysis and foster sensible results. D.F.
© David Froman 2012
- http://www.flcdatacenter.com/svp.aspx, last visited 3/27/2012.
- http://www.flcdatacenter.com/JobZone.aspx#4, last visited 3/27/2012.
- This is where the Wissen analysis jumped the tracks. The Board relied on the Certifying Officer (CO) for the meaning of the inequality sign without taking into account the nature of the symbols it joined:
"Thus, when the SVP range is stated as “7.0 to < 8.0,” it means that O*Net determined the SVP level of preparation to be anywhere from two years up to and including four years.11 Stated another way, the top end of the total preparation required must be less than an SVP of 8.0 (over 4 years and up to and including 10 years).
11 As the CO asserted in his appellate brief, “<” is the universal symbol for “less than” and the Employer’s position that this symbol actually means “less than or equal to” is unsubstantiated." Wissen, supra, Slip Op. at 6 (emphasis in original). The Board’s logic makes JobZone Four equal to SVP ‘7.0’ only–and SVP ‘8.0’ irrelevant surplusage.
- The Board in Wissen assumed that SVP 8 represented a single value. Accordingly, they failed to inquire, ‘Which part of SVP 8 is indicated here?’ Instead–following the advice of the CO–they automatically excluded all of SVP 8 by treating the low end of its time range as synonymous with its numerical designation. As the analysis shows, the low end of SVP 8 is contiguous with the high end of SVP 7, with no gaps. This continuous property admits no ‘foothold’ for the inequality symbol to function: there is no room for ‘x.’ To give the inequality and ‘x’ room to function, there must be a gap for them to operate in. Excluding SVP 8 from JobZone Four eliminates any gap. Only using the ‘goalpost’ end points of SVP 7 and 8 gives meaning to the inequality notation as a ‘range.’