The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position's education, training, experience and skill requirements in its PERM audit letters.
Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not "normal," the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.
Recent DOL PERM audits are now requiring that an employer explain why the employer's job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants.
Employers should keep the possibility of an audit in mind when preparing PERM job requirements and advertising. Employers should work with immigration counsel to develop a job description that clearly mirrors as best possible the O*NET occupation data, while at the same time reflecting the position's minimum requirements. Here, DOL is very sensitive to job descriptions that are tailored to the foreign national's background. In light of this tougher scrutiny by the agency, employers should keep the following considerations in mind during the PERM process:
- Advertising only one specific educational degree for the job, and not permitting related degrees to qualify, may require the employer to explain why only that particular degree is acceptable, and why other similar degrees are not.
- Any U.S. worker who is rejected during the recruitment process must be justified in detail in the employer's recruitment report. Employers have to show who was disqualified for what reason, including who was interviewed. Now employers may have to provide additional documentation explaining the who, how and when of the front-to-end applicant recruitment process under such an audit.
- For each U.S. applicant who is rejected for the position, the employer may have to explain why the applicant could not have gained a required skill on the job in a reasonable period of time. This is likely the most difficult of the new DOL audit requests. How long a reasonable period of time is will likely depend on what type of skill is missing and how easy it is to learn – simple tools or methodologies often can be learned in a matter of weeks, whereas obtaining expertise in a specific professional-level function might take months or years. The employer will need to explain and document why something would take months or years as opposed to some weeks, to learn on the job. Documentation could include government-provided occupation data, and overviews from industry organizations or experts as to how specific skills for an occupation are normally obtained and within what normal period. Alternatively, employers could show why it would not be possible or feasible to train an applicant on the job. To demonstrate the lack of feasibility, employers could present documentation showing stringent quality and delivery service obligations vis-à-vis customers, combined with detailed explanations as to how the need to train an applicant, including having another employee train vs do their own job, could jeopardize the business relationship with the client.
- For each applicant who was disqualified for not being a U.S. worker (i.e., not a U.S. citizen, lawful permanent resident, certain foreign national granted temporary residence, refugee, or asylee), the employer may have to explain, and provide supporting evidence, showing the process conducted to make this assessment and stating on what basis this determination was made, for each applicant. Employers can ask general questions about current U.S. work authorization and need for future immigration sponsorship via an online questionnaire, and/or obtain this information from cover letters, resumes, email correspondence or by interview. The practice of some employers to simply make an assumption about an applicant's nationality and location based on the resume has always been risky and now could be fatal.
In light of the rapidly changing job market and increased PERM application scrutiny, it is imperative to consider the business necessity of each PERM job requirement prior to finalizing the PERM job description and advertising. Employers should decide with counsel if, when and how to prepare business necessity documentation, including explanations and objective supporting evidence up front, or only if they receive a DOL audit.
Originally published Duane Morris, May 2020
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