Written by Meredith W. Barnette, Esq., Partner.
Employers often puzzle over how to list job requirements in the PERM application process. For those employers seeking a green card for a valued employee, PERM is often the first step in the sponsorship process. PERM is an electronically filed, attestation-based application filed with the U.S. Department of Labor (DOL) following a test of the labor market. The sponsoring employer attests under penalty of perjury that: (1) it has an opening for a full-time, permanent position; (2) it conducted advertising to determine if there are able, willing, available, and qualified U.S. workers for the position; (3) U.S. worker applicants were rejected only for lawful, job-related reasons; and (4) the employer can and will pay a wage that equals to or exceeds the prevailing wage as determined by the DOL. To test the labor market, the employer conducts advertising for the offered position as described in the PERM Regulations at 20 CFR §656.17 and thoroughly reviews all applications received during the recruitment period. If an able, willing, available, and qualified U.S. worker is identified, then the PERM application cannot be filed with DOL.
PERM regulations clearly state that an applicant can be rejected as unqualified only if s/he does not meet the job requirements and would not be able to acquire skills necessary to perform the duties after a reasonable period of on-the-job training.¹ The DOL leaves to the employer the burden of proving what is a reasonable period of on-the-job training. That can be a challenge for employers to articulate. When starting the PERM process it is therefore essential that employers thoughtfully consider the absolute minimum job requirements and include only those that are quantifiable. In nailing down job requirements, employers should consider the following:
- Does the company have a standard job description for the position and, if so, what requirements are listed?
- Omitting any preferences and subjective criteria, and including only actual requirements, what are the minimum knowledge, training, experience, and skills necessary to perform the job duties?
- Do the job duties point to the requirements? For example, if the duties state that the Software Engineer must develop processes utilizing XYZ Software, then it is clear why XYZ Software experience is required. However, if the duties only state that the Software Engineer develops processes, then it is not clear why XYZ Software experience is required.
- If an applicant lacks any of the requirements would it be possible to train him/her on the job and how long would it take?
- Has the employer ever hired someone into the same or similar position who lacked any of the education and/or experience and what were the consequences?
- Are there other employees in the same or in a similar position and would those employees meet the job requirements? If not, then what is different about this position’s duties that cause it to require different skills? If no difference exists, then the requirements must be consistent with the other position(s). (NOTE: PERM Regulations state that “the employer must not have hired workers with less training or experience for job substantially comparable to that involved in the job opportunity.”²)
- How do the requirements bear a reasonable relationship to the occupation in light of the employer’s business? For example, how does requiring experience with ABC Software relate to the company’s overall objectives?
- Are the requirements objective? The requirements must be measurable so that the employer and the DOL can clearly determine if applicants are qualified. For example, it is not possible to objectively determine if an applicant has “strong understanding of ABC Software and advanced knowledge of XYZ Systems.” However, it can be determined if an applicant has “2 years of experience with ABC Software and XYZ Systems.”
- Did the sponsored foreign national employee meet all of the requirements when hired? While the employer is not permitted to tailor job requirements to the foreign national’s background, it also cannot require any education, training, or skills that the employee does not already possess. Further, it cannot require experience or skills gained on the job with the employer unless the employer can prove that the experience was gained in a position that is not substantially comparable to the position listed in the PERM application. The DOL considers a “substantially comparable” job to be one that requires performance of the same job duties more than 50% of the time.³
DOL Regulations also do not permit the employer to include requirements that are unduly restrictive (for example, requiring a Cook to have experience with a particular ethnic cooking method must be a business necessity and not just a preference that someone with general cooking experience could learn on the job). Additionally, a foreign language requirement is considered unduly restrictive when it is only a preference and not absolutely required. If a foreign language is necessary, then the employer must be able to document the need either because of the nature of the occupation or because the position requires communicating with a large majority of the customers, contractors, and/or employees who are not able to communicate in English.4 Including unusual, restrictive, excessive, or foreign language requirements will likely result in the PERM being subjected to an audit by DOL.
Establishing the employer’s absolute minimum job requirements is essential to a successful PERM application that properly tests the job market; can be certified by the DOL; and will also hold up through the immigrant visa petition which is the next green card step. The job requirements impact the prevailing wage; are used to measure whether or not able and qualified U.S. workers exist; and are compared to determine if the foreign national employee is qualified for the position. The requirements also affect the immigrant visa category in which the foreign national employee is placed which affects how long it may take to receive a green card. Regardless of timing, the employer should use the company’s actual job requirements and not structure requirements just to fit a desired category.
In carefully establishing minimum requirements the employer must be able to explain the business necessity for each required skill. The duties also should reflect that need. In the past, explaining business necessity usually was necessary only when the requirements were not what the DOL considered normal for the occupation. However, recent DOL PERM audits not only request business necessity explanations when the requirements are excessive, but also when requirements are normal. Additionally, recent DOL audits ask for all resumes received during the labor market test, including thorough documentation of applicant review, follow-up, and the reasons U.S. worker applicants were rejected and cannot perform the duties after a reasonable training period. To be prepared to respond to these audits, it is essential that employers be able to articulate the need for each requirement at the start of the PERM process, even when not excessive or unusual.
The process of establishing minimum job requirements is like assembling a puzzle. To be able to assemble the complete puzzle without any missing pieces, it is essential to turn over and examine all of the puzzle pieces from the start. Successful completion of the PERM puzzle depends on careful and thorough consideration of how to list requirements. The requirements should only include the employer’s actual minimum requirements for the position offered, boiled down to exclude preferences, while also including all the measurable detailed knowledge, skills, and experience necessary for someone to be able to perform the job duties after a reasonable amount of on-the-job training.
1 20 CFR §656.17(g)(2)
2 20 CFR §656.17(i)(2)
3 20 CFR §656.17(i)(3) and 20 CFR §656.17(i)(5)(ii)
4 20 CFR §656.17(h)(2)