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Understanding Special Requirements in PERM Labor Certification

The developing of a PERM application starts with the job description and forms the core of the application. Employers will need to accurately describe the position that the beneficiary will be sponsored for. This will include the job title, job duties, the minimum education and experience requirements, and any other additional requirements for the position. Also, the beneficiary’s credentials should be reviewed upfront to ensure that the beneficiary will qualify for the sponsored position. Not doing so can cause issues down the line. Properly drafting the job description and confirming that the beneficiary qualifies for the sponsored position help to ensure an approvable I-140 immigrant petition.

The PERM position is for the future position the beneficiary will hold once the green card is received. With that being said, the job description will need to be drafted in a way that will still be relevant at the end of the green card process. This is especially true for those individuals who may not receive a green card for many years due to the green card backlog. In these cases the job description may need to be more generic. Describing the position in broad terms might be best so that modest changes in the job duties over a period of years do not change the job description.

In other situations, it may be necessary to draft a more specific job description, as opposed to a more generic one. For instance, it may be best to describe the position in greater detail to reflect the specific minimum requirements important to the employer. Often, the employer is interested in processing the application for the individual because he or she has specific skills that are critical for the position and support the employer’s business needs. This article will delve deeper into the topic of special skills.

Special skills can manifest in various forms, depending on the nature of the job and industry. Technical experience, language fluency, managerial experience, and niche qualifications are among the common special skills sought after by employers. In technology-driven fields, experience in programming languages or emerging technologies can be considered special skills. Similarly, fluency in a foreign language may be indispensable in roles requiring international interaction.

PERM regulations also necessitate that the minimum requirements be quantifiable. An example of a quantifiable job requirement would be requiring a specific number of years of experience in a certain field or with a specific software operation system or programming language. Rather than simply stating that “extensive experience with JavaScript” is required, to quantify the job requirement, an employer would need to state that “two years of experience with JavaScript” is required. When looking at the recruitment process from the perspective of the Department of Labor (DOL), it would be difficult to determine if a fair test of the labor market had been conducted if applicants were turned away from the position because their experience with JavaScript was not “extensive” enough. The definition of “extensive” can vary between people and situations. It is much clearer, and easier, to see that good-faith recruitment was conducted if the applicants were not offered the position because they only had 6 months of experience with JavaScript when two years was stated as mandatory.

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. While an employer would like to fill an open position with someone who has “excellent written and verbal communication skills” or “strong technical problem solving and reasoning skills” and the “ability to work in a fast-paced environment”, these subjective terms should not be included. When hiring in a “real world” situation, employers can require subjective skills, but in the PERM context, all requirements must be quantifiable and clearly expressed.

The beneficiary must state their experience in the special skills on the PERM application (Form ETA-9089). On the PERM application, the special skills must be stated in Appendix A.D – Foreign Worker Skills. The beneficiary must also document their experience in the special skills with an experience letter submitted with the I-140 immigrant petition.  Please note that no supporting documentation is included in the submission of a PERM application. This supporting documentation is, however, submitted with the I-140 immigrant petition filed with USCIS.  The experience letter should reflect the information on the beneficiary’s PERM application and must:

  • Be on company letterhead (include company address, be dated and signed by a company representative, and list the signatory’s job title);
  • Include whether the work was full-time or part-time and number of hours worked per week;
  • List the job title held while with that company;
  • List the dates of employment;
  • Provide a job description, which should include relevant job duties; and
  • Include any special skills required for the position.

In the event the beneficiary cannot obtain a proper experience letter, secondary evidence may be submitted to USCIS. It is important to note that secondary evidence is not guaranteed to be accepted by USCIS so it is best to consult with a qualified immigration attorney to explore your options thoroughly. Secondary evidence includes the following:

  • Affidavits from former colleagues attesting to the qualifying employment, including dates of employment, job title, and duties performed;
  • Job Offer letters, project deputation letters/invitations, Service Certificates, Resignation Acknowledgments, etc.; or
  • W-2s (or the foreign equivalent such as the Indian Form 16) for the span of years of claimed employment

Please note, DOL limits the requirements for the sponsored position to the employer’s actual minimum requirements for the job. The requirements for the position should not be unduly restrictive or tailored to the beneficiary because this can be seen as disadvantaging U.S. workers by unfairly restricting the applicant pool.

Employers who overstate the requirements for the role or tailor those requirements to the beneficiary’s qualifications may have to answer to DOL in the form of a PERM audit. Under these circumstances, the employer must be prepared with a business necessity statement to demonstrate that the job duties and requirements (1) bear a reasonable relationship to the occupation in the context of the employer’s business and (2) are essential to perform the job in a reasonable manner. Basically, DOL will want evidence demonstrating the special business need for the requirements provided. If the employer cannot provide the requested evidence, the PERM application may be denied.

Reddy Neumann Brown PC. has been serving our clients for over 25 years. Our team is dedicated to helping our clients navigate the U.S. business immigration system by offering prompt, practical, and professional advice. Because the U.S. business immigration system can be tricky, it is always best to contact a qualified immigration attorney to help come up with the proper solution for each individual case.

By: Camille Joson

Camille Joson is a Senior Associate Attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department, where she assists clients in the beginning stages of the employment-based green card process. Camille guides clients through the PERM Labor Certification process from start to finish and has handled hundreds of PERM applications throughout her career.