Immigration Blog

Since the implementation of PERM (Program Electronic Review Management), many employers have been dreading the arduous process it entails when sponsoring an employee’s green card application. Employers have to first clearly define the job duties and responsibilities of the position being offered. Having done this, the employer must then apply for a certification from the Department of Labor (DOL), conduct the necessary recruitment, then file the PERM application on behalf of the employee. Only when PERM application has been approved can the foreign-born employee apply for permanent residence status.

In this blog, we will address one of the major issues employers encounter as they venture through the PERM puzzle – business necessity. The Department of Labor has been increasingly asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.

What Constitutes Business Necessity?

Under PERM process regulations, employers can only require education, training, experience, and skills that are “normal” to the job. DOL uses Occupational Employment Statistics and O*NET Online databases to determine what is normal. If any job requirements are not considered as such, the employer must be prepared to justify that the special requirements bear a reasonable relationship to the occupation in the context of the employer’s business. Furthermore, the special requirements must also be essential to the employees’ ability to perform, in a reasonable manner, the job duties as described by the employer.

While employers are generally not encouraged to include any special or non-normal requirements in the job-description of a PERM application, there are unavoidable instances where they might have to include them as a form of business necessity. Examples of business necessity requirements may include a foreign language, additional educational qualifications or additional years of experience compared to what is normally required in a particular job or industry.

Foreign Language as a Business Necessity

An application submitted with a foreign language as the special requirement, is permissible if the employer can successfully prove that the foreign language falls under one of the following categories: a) customer preference, b) business expansion or c) the language is necessary to communicate with a majority of the employer’s customers, contractors and or employees.

For example, if Acme Company lists Mandarin as a required language for a Sales Manager position, then Acme Company must show that unless the Sales Manager speaks Mandarin, he or she will not be able to reasonably perform the normal job duties. A justification for Mandarin as a special requirement could be because 80% of Acme’s customers speak Mandarin. A foreign language requirement can also be justified if an Acme Company employer is opening a new business in China and the Sales Manager in the U.S. will be required to frequently communicate with the senior executives in China, who only speak Mandarin. Based on those details, the DOL will consider whether foreign language is truly a business necessity.

Due to the strict scrutiny that applications with special requirements and the corresponding business necessity undergo, it’s always a good idea to retain an experienced attorney who can to guide employers from the initial stage of obtaining a Prevailing Wage Determination, to the preparation of the business necessity statement in support of the PERM application. Let us know if you have questions about any stage of the PERM process, we’re here to help.

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