For employment-based green card sponsorship, employers must provide the Department of Labor with the education, training, and experience requirements for the offered position, as part of the PERM labor certification process. Employers familiar with this process understand the Department of Labor uses these requirements to determine the “prevailing wage” for the position, which is defined as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment,” and is, ultimately, the minimum wage that the employer can offer for the PERM position.
However, the Department of Labor also analyzes whether these requirements are “normal,” which can create an additional hurdle for employers. Under PERM regulations, an employer offering a position to an immigrant worker can only require education, training and experience requirements the Department of Labor considers to be normally required for the occupation. The Department of Labor is wary of any requirements it considers to be outside of these industry norms, and the DOL has increasingly issued audits on PERM Labor Certification Applications, asking employers to defend their education, training and experience requirements that fall outside this standard.
Factors Considered by the Department of Labor to Determine “Business Necessity”
The Department of Labor uses Occupational Employment Statistics and the ONET Online database to determine if a set of requirements are normal for a given occupation. If challenged by the Department of Labor, an employer must provide evidence that their special requirements are reasonably related to the prospective employee’s ability to perform the job duties of the position, or in other words, arise from a “business necessity.”
Using ONET data, the Department of Labor has assigned a “JobZone” to each occupation, providing an outline for the level of education and experience the Department of Labor believes is a normal requirement for any given occupation:
- JobZone 1 – Little or No Preparation (SVP <4)
- JobZone 2 – Some Preparation Needed (SVP 4.0 to < 6.0)
- JobZone 3 – Medium Preparation Needed (SVP 6.0 to < 7.0)
- JobZone 4 – Considerable Preparation Needed (SVP 7.0 to <8.0)
- JobZone 5 – Extensive Preparation Needed (SVP 8.0 and above)
Making it even more complex, each of the Department of Labor’s JobZones refer to Specific Vocational Preparation (“SVP”) values ranging from 0 to 9. Each number on the SVP scale represents a range of time that is ordinarily required for an individual to be trained. For example, “7.0” refers to “over 2 years up to and including 4 years,” and “8.0” refers to “over 4 years up to and including 10 years.” This means that it is “normal” for an occupation in JobZone 4 to require training and experience ranging from “over 2 years and including 4 years,” and requiring experience beyond 4 years for the position would fall outside normal requirements.
Even complicating matters further, the Department of Labor also considers education requirements when making their SVP calculations. A bachelor’s degree, for example, is considered equivalent to two “SVP years.” Therefore, if a position requires a “bachelors degree and two years of experience,” the Department of Labor would consider that to be four “SVP years.”
Additionally, the Department of Labor assigns occupations an “Education and Training Code” corresponding with the level of education normally required for an occupation. These codes include the following:
- One: Professional Degree
- Two: Doctoral Degree
- Three: Master’s Degree
- Four: Bachelor’s Degree
- Five: Associate’s Degree
- Six: High School Diploma or equivalent
Employers listing job requirements for a position that fall outside of the Job Zone or Education and Training Code for that position’s occupation run the risk of receiving a “business necessity” audit.
There are also some specific “red flags” that can trigger a business necessity audit. For example, including knowledge of a foreign language as a mandatory job requirement is a common trigger for a business necessity audit. As with other special requirements, an employer can overcome a challenge on foreign language requirements by establishing it is necessary for the regular job duties of the position, such as showing it is necessary for communicating with regular customers.
The Department of Labor also likely will issue an audit for cases where the proposed job involves a combination of occupations, and that combination of occupations is not common practice by the sponsoring employer or in their industry.
Receiving a “Business Necessity” Audit
In recent years, the Department of Labor has updated the standard language in its audit notification letters, broadly stating: “If any of the requirements for the job opportunity differ from those identified as normally acceptable, the employer should submit documentation establishing business necessity and address how the requirements at issue apply to any U.S. applicants.” This phrasing essentially requires employers to make their own determination as to whether their requirements are normal for the position, and leaves it to the employer to decide whether they believe it is necessary to provide business necessity documentation in their response to the audit, creating a trap for the unwary.
When the Department of Labor issues an audit, an employer only has thirty days to respond. Therefore, if caught unprepared, an employer may find themselves scrambling to provide a justification for their job requirements.
If you have questions about your particular case, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.