DOL Directives on Business Necessity and Finite Employment Unearthed Through PERM FOIA Litigation
A recent Freedom of Information (FOIA) request has led to the Department of Labor (DOL) releasing 272 documents relevant to the operation of the Office of Foreign Labor Certification’s (OFLC) Program Electronic Review Management System (PERM). These documents provide some useful insight into DOL policy. For further information, see the Gluckman v. U.S. Dept. of Labor opinion here.
By way of background, the primary manner to secure employment-based U.S. Permanent Residence for foreign nationals is the PERM Labor Certification process. This is an application filed by employers with the DOL certifying that they are unable to find able, willing or qualified U.S. workers for an open position after completing certain mandated recruitment steps.
As a part of its compliance efforts, documents recently released by DOL include two directives from November 2009 from the Administrator of OFLC. The first directive concerns PERMs for finite employment opportunities. Pursuant to this directive, DOL may deny the PERM case if the job opportunity is “finite,” or not “permanent” as required by the regulations. The directive provides several examples of such job opportunities, including: medical residency, fellowship with an end date, internship with an end date, or seasonal work. If it is unclear whether the employment opportunity is finite, DOL analysts are instructed to recommend an audit. It should be noted that these directives are consistent with the regulatory requirements of the PERM program — positions must be for a permanent U.S. position, not one that is temporary in nature.
The second directive details acceptable documentation to establish business necessity. Whenever DOL finds that a PERM application contains a job duty or requirement not ordinarily contained in the description of a given occupation, DOL will very likely audit the case to determine if the employer can establish business necessity – i.e. demonstrate that the job duty or requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job in a reasonable manner. DOL analysts are able to certify a PERM application in certain circumstances even when they note that a job duty or requirement is outside what is normally required, because there is common DOL knowledge of the business necessity for the particular requirement.
This second directive reminds employers that they must be able to support all minimum requirements stated on a PERM application in the event of being challenged by the DOL in an audit. Further, employers should only include requirements that are essential – not preferred – to perform a position. Failure to do so may result in a denial, and, in some instances, bring into question the overall integrity of a company’s immigration program.
This post was written with contributions from Shaun Staller.