IndiaPost.com - PERM audits

In recent months, immigration practitioners are reporting an increase in audit notifications each time a labor certification application is filed with the Atlanta and Chicago Processing Centers under the PERM electronic filing system. Labor certification is the first step when an employer sponsors a foreign national worker for a green card.

The employer must establish that no US workers were available for the position before it can electronically file a labor certification application. The audits primarily request a "business necessity" justification for job requirements with the Department of Labor (DOL) finds excessive. An employer's job requirement will be considered excessive if it does not comport with the corresponding job level assigned to the occupation, in DOL's O*Net system (www.onetonline.org).

For example, if the O*Net job zone for the occupation is "7<8," the Standard Vocational Preparation (SVP) for this occupation, according to the DOL, is a maximum of 4 years for the position. The DOL equates a bachelor's degree to 2 years of preparation time and a master's degree to 4 years of preparation time.

Thus, a job requiring a bachelor's degree (2 years of SVP) and 2 years of experience (2 more years of SVP), if designated under an SVP of "7<8," will be within the normal requirements. The employer's requirements of 4 years of lapsed time to prepare for the occupation comports with the 4 years of SVP under "7<8."

If an employer has requested a master's degree and 2 years of experience, it would exceed the normal preparation time for the position with an SVP of 7<8. A master's degree equates to 4 years of preparation time, and the 2 years of experience added on to the master's degree amounts to 6 years of preparation time required by the employer for the occupation. "Business Necessity" is defined in Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and codified in 20 CFR § 656.17(h), which states:

"To establish a business necessity, an employer must demonstrate the 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." Under the first prong of Information Industries, both duties and requirements must be linked to the employer's specific business operations to determine whether they are reasonable in that context.

Under the second prong, the duties and requirements must be related to one another, and reasonably suited, in the context of the employer's business operations. In responding to the audit request, the employer must take pains to establish though "business necessity" that the allegedly excessive requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner.

Such evidence could include the employer's past hiring practice of employing people with similar education and experience for the position as well as industry standards that are compatible with the employer's. The employer's business operations must also be described in detail, and it must be demonstrated that the requirements are essential to perform the duties of the position in the context of the employer's specific business needs.

If an employer requires a foreign language, the application is also likely to get audited. Here too, the employer must show "business necessity" by demonstrating that a significant portion of its business is performed in a foreign language or with foreign speaking clients or employees.

Furthermore, the employer must also demonstrate that the employee's duties require communication or reading in a foreign language. TEL-KO Electronics, Inc., 1988-INA-416 (BALCA 1990) (en banc).

Under the new PERM rule, the employer may also justify a foreign language requirement if it is inherent to the nature of the occupation e.g. translator. The employer can further demonstrate, under the new PERM rule that a significant portion of employees in the workforce cannot communicate in English and the need for the foreign national worker to communicate with such employees in a foreign language.

Moreover, an employer can also demonstrate a foreign language requirement by submitting a detailed plan to market product or services in a foreign country. If the employer requires experience for the job, and the foreign worker being sponsored obtained that experience with the same employer, it is essential for the employer to explain that the job duties have changed by 50 per cent.

DOL audits, in addition to "business necessity" explanation, also require further justification that the job duties have changed by 50 per cent in the event that the employer is relying on experience, which the foreign worker gained on the job.