May 31,2022 News rnlawgroup.com
Best Practices for Setting Employer Minimum Requirements – PERM
The DOL limits the type of training, experience, and education that may be required in a PERM application to the employer’s actual minimum requirements for the PERM position.
- When establishing the minimum requirements for the position, the employer should ask himself/herself: What bare minimum credentials does the company need a prospective employee to have to be able to function in a reasonable manner in the position?
- The requirements should not be unduly restrictive or tailored to the beneficiary. Using only the minimum requirements ensures that the requirements are not unduly restrictive towards U.S. workers thereby creating an unfair advantage to the beneficiary.
- Know the difference between preferred or “real-world” job requirements and PERM job requirements. For instance, the employer prefers a prospective employee to have a Master’s degree with 15 years of professional related work experience. But, the position, at a minimum, requires a Master’s degree and 1 year of experience to function in a reasonable manner. In a “real-world” situation, the employer can require whatever they like, but under PERM regulations, the requirements must reflect those minimally needed to perform the job.
- The employer cannot have hired workers with less training, experience, and education for substantially comparable jobs. The employer can look to other individuals on the team who were hired to fill this position in the past. If all of the individuals have Bachelor’s degrees and the beneficiary has a Master’s degree, then the minimum education requirement would be a Bachelor’s degree.
- The employer cannot require more of U.S. worker applicants beyond what was possessed by the beneficiary at the time of hire. If the beneficiary is already employed by the company in the same position, in considering whether the job requirements actually represent the employer’s minimum requirements, the DOL will review the beneficiary’s qualifications at the time of hire. For example, if the employer hired the beneficiary into a position with a Bachelor’s degree and no experience and then 2 years later is requesting to sponsor the beneficiary for a green card in the same position, the employer cannot now state that the job requires a Bachelor’s degree and 2 years of experience because at the time of hire the beneficiary only possessed a Bachelor’s degree. To request more than a Bachelor’s degree would be disadvantaging U.S. workers.
Because the PERM process can be tricky to navigate, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.