In traditional recruiting and hiring, employers naturally seek the most qualified candidates for a position. Companies often develop extensive lists of preferred qualifications, skills, and attributes that would make an individual an ideal fit for their organization. Hiring decisions may ultimately come down to subjective considerations, such as personality, communication style, cultural fit, and other interpersonal factors.

Because these practices are deeply ingrained in the hiring process, employers are often surprised to learn that PERM recruitment operates under a very different framework. During the PERM process, employers must evaluate applicants based solely on the actual minimum requirements of the position and nothing more.

The PERM labor certification process was established by the U.S. Department of Labor to protect U.S. workers. At its core, the process serves as a test of the U.S. labor market designed to demonstrate that hiring a foreign worker will not displace qualified U.S. workers. Specifically, employers must establish that there are no U.S. workers who are “able, willing, qualified, and available” to fill the offered position.

To satisfy this requirement, employers must conduct recruitment in good faith. One of the most important steps in that process is accurately identifying the minimum requirements for the position before recruitment begins. These requirements must reflect the employer’s true minimum qualifications and cannot include preferred qualifications or ideal candidate characteristics.

A useful way to distinguish between a minimum requirement and a preferred qualification is to ask the following questions: What are the bare minimum qualifications that the prospective hire needs to have to be able to function in a reasonable manner in the position? If the current employee left and a replacement needed to be hired immediately, what credentials would be absolutely necessary for the new hire to perform the position successfully?

The DOL also requires that job requirements be objective and quantifiable. For example, a requirement such as “extensive experience with JavaScript” is subjective and difficult to measure. Instead, an employer should specify a measurable requirement, such as “two years of experience with JavaScript.”

Quantifiable requirements allow DOL to determine whether recruitment was conducted fairly. Terms such as “extensive,” “advanced,” or “strong” can be interpreted differently by different individuals, making it difficult to evaluate whether applicants were properly considered. By contrast, a requirement of two years of JavaScript experience provides a clear, objective standard against which all applicants can be measured.

As a result, employers should avoid including subjective requirements in PERM recruitment, regardless of how important those qualities may be in a typical hiring process. Common examples include:

• Excellent written and verbal communication skills
• Strong technical problem-solving abilities
• Ability to work in a fast-paced environment
• Outstanding leadership skills

While these characteristics may be desirable in a candidate, they are generally difficult to quantify and therefore may not be appropriate as PERM job requirements. Unlike traditional recruitment, where employers have broad discretion in defining qualifications, PERM recruitment requires that requirements be objective, measurable, and clearly articulated. If an employer cannot reasonably quantify the job requirements, those job requirements should not be included in the job description, no matter how important these qualifications might seem when conducting “real world” recruitment.

Another important consideration is the employer’s historical hiring practices. DOL may examine the qualifications of employees previously hired for the same or substantially comparable position. An employer generally cannot require more education, training, or experience than it has historically accepted for that position.

For example, if employees previously hired into the position possessed bachelor’s degrees, but the foreign worker holds a master’s degree, the employer cannot automatically establish a master’s degree as the minimum requirement. In that scenario, the employer’s actual minimum requirement would likely be a bachelor’s degree, assuming prior employees were hired with that level of education.

Similarly, employers cannot require more from U.S. worker applicants than the foreign worker possessed at the time of hire. When the foreign national is already employed by the sponsoring employer, DOL will often examine the worker’s qualifications when they were originally hired to determine the actual minimum requirements of the position.

For example, if the foreign worker was hired two years ago with a bachelor’s degree and no prior experience, the employer generally cannot now claim that the position requires a bachelor’s degree plus two years of experience. Although the foreign worker has since gained two years of experience while working for the company, the employer originally hired the individual without any prior experience. Therefore, DOL may conclude that no experience is the true minimum requirement for the position.

The PERM process can be challenging because it often differs significantly from conventional hiring practices. Employers accustomed to seeking the “best” candidate must instead focus on identifying and documenting the actual minimum qualifications necessary to perform the job. Establishing appropriate requirements at the outset is critical to a successful PERM application and can help avoid issues later in the process.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy & Neumann’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.