PERM “Business Necessity” Audit Response: Strategies and Practice
Jian Joe Zhou, attorney at law
With the extensive visa number retrogression and current unavailability of visa numbers for immigration petitions in the EB-3 categories (for positions requiring at least a bachelor’s degree or two years of experience), the EB-2 category (for positions requiring at least a master’s degree or combination of bachelor’s degree plus five years of experience) is a particularly attractive option for employers and alien beneficiaries. However, the Department of Labor’s current PERM process may make it more difficult for employers to offer positions under the EB-2 category.
As a part of the EB-2 (except NIW) and EB-3 category process, a sponsoring employer is required to go through the PERM process. During the PERM process, a US employer must demonstrate to the Department of Labor (DOL) that there is a shortage of “minimally qualified” US workers for a specific position. The first step in demonstrating this is for the US employer to conduct a good-faith recruitment search. Then, if satisfied with the documents, the DOL will certify the PERM application and the US employer will then be eligible to file an I-140 immigration petition on behalf of the alien beneficiary.
In the interest of protecting US workers’ employment opportunities, the DOL sets strict rules ensuring that employers’ recruitment processes are conducted with “good faith.” One of the requirements of a good-faith recruitment is that the required minimum qualifications for the petitioned position are reasonable and do not involve unduly restrictive requirements.
In its most recent interpretations, the DOL determined that many professional positions, like computer engineer, programmer, accountant, civil engineer, architect, only require a bachelor’s degree and that only limited level of experience may be listed as a prerequisite for these professional positions. Requiring over the minimum established for a given position, may trigger a red flag with the DOL and lead to a specific type of audit called a business necessity audit. A business necessity audit is issued by the DOL to request that an employer provides documentary evidence to demonstrate the specific and special business needs to set up a set of qualifications for a PERM position that is beyond the general qualifications defined by the DOL for that position.
The prospect of a DOL audit may seem daunting for both employers and alien beneficiaries, responding these audits involve many complicated legal issues and there is never any guarantee of success; each case depends on the specific facts of the case. However, since the implementation of the PERM online system in 2005, our firm has been very successful in helping its clients in every DOL business necessity audit we have encountered. Using our previous labor certification knowledge and recent experiences with the PERM system, we have been able to come up with several strategies in response to DOL audits.
First, the employer should detail the complex set of duties for the petitioned position. Without changing the description of the petitioned position, the employer may elaborate on the tasks under each duty and the skills involved and link them to training or course work that would be received during a master program in the required field. In addition, the employer may describe the project details, sophistication of organization/business structure, and intricacies of the client-business relationship in order to enhance the argument that the position requires a higher level of independent judgment and analysis, generally only attained through an advanced degree studies. Secondly, employer may provide a hiring history to argue that the advanced requirements are consistent with past business practices. Of course, if the petitioned position is a newly created high-level, master degree offering, the employer should emphasize any new business needs that factored in to the creation of the position. Furthermore, an employer may argue that the prevailing industry requirement for a similar level of position is a minimum of a master’s degree by providing job postings of similar employers; affidavits from industry experts may also be of help in this regard. Finally, the employer can provide positive statements or indications showing that such positions require a master’s degree; these publications are particularly helpful when they are authored by government agencies.
Even with these strategies, there are many detailed and often confusing steps involved in the EB-2 and EB-3 through PERM immigration petition processes. The help of an experienced and dedicated attorney can greatly assist employers prepare the necessary documents and complete the required steps to complete this complicated process.
The experienced attorneys at Zhang & Associates, PC have assisted on hundreds of successful Labor Certification (PERM and pre-PERM process) cases. We minimize employers’ exposure to potential investigation by navigating the employer through this complicated process with our extensive real-world experience and deep understanding of DOL regulations. In addition, we try to negotiate the most benefits possible for individual aliens under the policies and guidelines provided to the employer. In a process where our attorneys could eventually represent both the employers and alien employees, we have developed a balance between the client interests and benefits that few firms can offer.
* Attorney Jian Joe Zhou is a Co-managing attorney at Zhang & Associates, PC, with more than 8 years of experience in employment-based immigration and international law. During this time, Joe has helped employers and aliens in hundreds of Labor Certification cases, in both the current PERM system and the prior-PERM system. Joe is a recognized expert in the PERM process and has published extensively on this area of immigration law. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at email@example.com
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