Determining Normal Position Requirements for PERM

When a PERM labor certification case is filed, the employer must state the minimum education and/or experience requirements for the sponsored position. If the employer requires a higher level of education and/or experience than what the U.S. Department of Labor (DOL) considers normal for the position, the DOL may audit the case and the employer will need to establish the business necessity for the stated job requirements. Although higher job requirements may often be defensible, it is important for an employer to understand how the DOL determines the normal requirements for a particular occupation and how business necessity may need to be established.

Special Vocational Preparation

PERM regulations require use of the O*NET classification system to determine the industry-norm for education, training, and experience, or special vocational preparation (SVP) classification, for particular occupations. The O*NET collects real-world data for hundreds of occupations and divides occupations into five job zones. Each job zone has a specific SVP range, and an occupation is assigned a job zone based on its particular SVP, with occupations requiring the lowest amount of preparation placed in job zone one and occupations requiring the highest amount of preparation in job zone five.

Determining an Occupation’s Normal Requirements

An occupation’s SVP level is graded on a scale of one to nine based on the amount of preparation needed for the occupation. A level one means the occupation requires only a short demonstration to be prepared, while a level nine means the occupation requires over ten years of experience. An occupation’s SVP calculation includes not only work experience, but also certain levels of education. That is, a bachelor’s degree is considered equivalent to two years of preparation, a master’s degree is equivalent to four years, and a doctorate is equivalent to seven years. If an employer’s minimum requirements for a PERM position exceed the occupation’s assigned SVP range, the DOL considers the requirements to be higher than normal.

For example, a software developer is placed in job zone four, for which the DOL considers two to four years of preparation to be normal. If an employer requires a bachelor’s degree and two years of experience for a software developer PERM position, which are together equivalent to four years of SVP, the DOL considers these requirements normal. If the employer requires a bachelor’s degree and three years of experience for the same position, which together exceed four years of SVP, the DOL considers the requirements higher than normal.

Establishing Business Necessity for Higher-than-Normal Requirements

The PERM process requires an employer to test the U.S. labor market for qualified U.S. workers. When an employer sets forth the minimum requirements for a PERM position, the DOL will evaluate whether the requirements are normal for the position and if the employer is fairly testing the U.S. labor market, or whether the employer is requiring higher than normal requirements and disadvantaging potentially qualified U.S. workers.

If the employer’s requirements are higher than normal, the employer must disclose this on the ETA form 9089, application for labor certification, and explain the business necessity for the high requirements. In event of an audit on the PERM application, an employer may need to further establish business necessity by providing documentation to show that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business, and are generally essential to perform the job in a reasonable manner within the industry. Cases filed in the employment-based, second preference (EB2) category for positions requiring a bachelor’s degree and five years of experience may receive this type of audit request.

Conclusion

Preparing a strong PERM case from the start of the process and through the filing is a key to success in this highly regimented area of employment-based immigration law. The Murthy Law Firm has extensive experience in all aspects of the PERM process, including audits. Our skillful team is available to provide assistance and representation with these matters.

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