How Are Case Requirements Determined?
The Company must establish objective minimum requirements based on its minimum requirements for the position:
- The requirements are objective, not subjective – no adjectives;
- The requirements are based on actual job duties, NOT the employee’s personal qualifications;
- DOL may compare listed requirements to other cases the company has filed in questioning objectivity;
- O*Net OES/SOC job codes and SVP – place a ceiling on what may be required – see: http://www.flcdatacenter.com/OESWizardStart.aspx
Is It Permissible To Add A Foreign Language Requirement To A PERM Application?
With the limited exception of immigrants from a few other English speaking countries, almost every person who goes through the PERM process speaks a second language. DOL, whose job is to protect the U.S. workforce, is skeptical of foreign language requirements and will almost always send the case to the audit queue, which can increase processing time from 6 months to more than 2 years. Including a foreign language requirement is not recommended unless such a requirement can be strongly documented as a business necessity.
Are There Certain Prohibitions That Will Result In An Automatic Denial Of The PERM Application?
The following will result in a denial of the PERM application, in addition to other potentially more severe penalties:
- Allowing the employee to write the case requirements and administer the resume review step. [20 CFR § 656.10(b)(2)(i); 20 CFR § 656.17(h) and (l).]
- Matching the case requirements exactly to the foreign worker’s personal qualifications. [Prohibition against “tailoring” and Matter of Francis Kellogg.]
- Filing an application with requirements that the employee does not meet or for which the employee cannot confirm qualifications with adequate supporting documentation. [20 CFR § 656.17(i).]
- Adding requirements obtainable through a reasonable period of OJT (On the Job Training). [20 CFR § 656.17(g)(2).]
How Does The PERM Recruitment Process Work?
Employers are required to place certain posting and advertisements in order to inform potentially available U.S. workers of the job opportunity. These recruitment steps must be completed at least 30 but no more than 180 days prior to filing. The required steps include: 2 Sunday newspaper ads and a job order with the State Workforce Agency (the “SWA”); AND 3 of the following: job fairs, employer’s own website, independent website, on-campus recruitment, trade or professional organization, private employment firm, employee referral program with incentives, campus placement office, local or ethnic newspaper, radio or TV ads.
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