Exploring the Concept of “Business Necessity” in Relation to a PERM Application

By Kisshia Simmons, Esq. and Joanalee Frew

Over the past few years, since the implementation of the PERM program, many employers have dreaded this arduous process. For today’s blog, we will address in part, one issue that may be encountered as you venture through the PERM puzzle. The PERM process is one in which the employer wants to sponsor an employee for a green card. The employer first has to first clearly define the job duties and responsibilities of the position being offered. Having done this, the employer must now apply for certification from the Department of Labor (DOL), conduct the necessary recruitment then file the PERM application on behalf of the alien. Only and until the PERM application has been approved can the alien apply for permanent residence status.

One tricky aspect of the PERM process is proving business necessity. Business necessity is an exception justifying the inclusion of special requirements for the PERM job opportunity. Ultimately, a business necessity must establish that the special requirements bear a reasonable relationship to the occupation in the context of the employer’s business. Furthermore, the special requirements must also be essential to the employees’ ability to perform, in a reasonable manner, the job duties as described by the employer. While employers are not generally encouraged to include any special or non-normal requirements in the job-description of a PERM application, there are unavoidable instances where they might have to include them as a form of business necessity.

What Constitutes Business Necessity?

Special requirements will be considered a business necessity where they would allow for the employee to effectively perform his or her normal job duties, in a reasonable manner. Examples of business necessity requirements may include, but are not limited to, the requirement of a foreign language, additional educational qualifications or additional years of experience from what is normally required in a particular job industry.

Foreign Language as a Business Necessity

An application submitted with a foreign language as the special requirement, will be permissible if the employer can successfully prove that the foreign language falls under either of the following categories: a) customer preference, b) business expansion or c) where the language is necessary to communicate with a majority of the employer’s customers, contractors and or employees. For example, if Acme Company lists Mandarin as a required language for a Sales Manager position, then Acme Company must show that unless the Sales Manager speaks Mandarin, he or she will not be able to reasonably perform the normal job duties. A justification for Mandarin as a special requirement could be because 80% of Acme’s customers speak Mandarin. It is also justified is Acme Company employer is opening a new business in China and the Sales Manager in the U.S. will be required to frequently communicate with the senior executives in China, who only speak Mandarin. The Sales Manager is one example of how the DOL will consider whether foreign language is truly a business necessity.

Due to the strict scrutiny that applications with special requirements and the accompanying business necessity undergo, we recommend that the employer retains a qualified Attorney who will be able to guide them from the initial stage of obtaining a Prevailing Wage Determination, to the preparation of business necessity statement in support of the PERM application.

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