New York Labor and Employment Law Report Blog Posting: Defining Minimum Requirements for Filing of an Application for Permanent Employment Certification

June 25, 2010

By: Kseniya Premo

Foreign nationals frequently approach employers with a request to sponsor them for permanent residency based on employment. As many employers know, the first step in the sponsorship process consists of obtaining an approved labor certification application from the U.S. Department of Labor (DOL). This permanent labor certification program (often referred to as the “PERM” program) was redesigned by the federal government in 2005 and contains very specific rules and regulations detailing how employers must conduct any recruiting for a permanent residency position.

One requirement for obtaining certification is proof that there are no minimally qualified U.S. workers for a specific job vacancy within a specific job pool. In order to satisfy that requirement, it is very important for the employer to clearly and properly define the qualification threshold below which the employer is not willing to hire any job applicant - the employer's actual minimum requirements for the position. As a result, PERM recruiting differs significantly from the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one that meets the job's minimum requirements. Employers should strictly comply with DOL’s regulations and keep the following points in mind when drafting minimum job requirements.

The General Rule for Stating Minimum Requirements

Job requirements must adhere to what is customarily required for the U.S. occupation and may not be tailored to the foreign national’s qualifications. In addition, the employer must be able to demonstrate that it has not hired workers with lesser educational qualifications or experience for substantially comparable positions. In other words, the employer must establish that the job opportunity has been described without the use of unduly restrictive job requirements, unless the employer can demonstrate that the job requirements arise out of “business necessity." The concept of business necessity comes into play when an employer’s minimum requirements exceed what DOL thinks are the appropriate minimum requirements for the position. To establish business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner. The employer should prepare business necessity documentation prior to submitting the labor certification application for processing.

Foreign Language Requirements

An employer should not specify a foreign language as a minimum requirement for the position, unless it is prepared to justify this requirement on business necessity grounds. As a general rule, DOL selects for audit cases requiring knowledge of foreign language. In order for the case to be approved, DOL requires the employer to justify knowledge of a foreign language requirement on business necessity grounds. This standard is difficult to satisfy. It can, however, be shown by proof of a need to communicate with a large majority of the employer’s customers, contractors, or employees who cannot communicate effectively in English.

Experience Gained With the Employer

In defining the minimum requirements of the job, employers often include experience that the foreign national gained while in its employ. For example, if the sponsoring employer employed the foreign national for three years prior to filing the labor certification application, the employer may think it is appropriate to identify three years of experience in the position as the minimum requirement for the job. The DOL regulations, however, do not permit using experience gained with the sponsoring employer as a qualification for the position, unless: (1) the foreign national gained the experience while working for the sponsoring employer in a position not substantially comparable to the position for which the certification is being sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

Documenting the Foreign National’s Experience and/or Educational Credentials

Finally, where an employer specifies a certain degree or requires prior work experience, it should carefully examine the foreign national’s credentials prior to starting the labor certification application process to ensure that the foreign national actually meets the stated criteria. Prior experience, for instance, should be documented through “experience letters” obtained from the foreign national’s former employers. The letters should identify the exact period of employment, and include a detailed description of the duties performed and the skills acquired. To document educational requirements, the employer should carefully examine the foreign national’s degrees and/or certificates to ensure that they match the degree(s) specified as the minimum educational requirement for the position. If the foreign national’s degree does not specify a field of study, the employer should require the foreign national to obtain an official letter and transcripts from his college or university to confirm his field of study.