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The filing of a labor certification application with the U.S Department of Labor (DOL) is typically the second step towards the permanent residence process. Prior to submitting a labor certification application, the U.S. employer is required to obtain the Prevailing Wage Determination (PWD) and conduct a PERM recruitment process as outlined by the DOL for the available position. The PERM recruitment process must certify to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment.

Recently DOL has been issuing PERM audits to the U.S employers seeking documentation to establish the business necessity especially in the following circumstances:

1. Positions requiring a master’s degree or equivalent (e.g., bachelor’s degree and five years of progressive post-baccalaureate work experience).
2. Positions requiring less than a Bachelor’s Degree.
3. Positions requiring a degree (i.e., bachelor’s or master’s) but not necessarily any work experience.
4. Positions requiring certifications that aren’t typically required for a job.
5. The foreign national beneficiary got his or her training or experience required for the position with the petitioning employer.

With the PERM electronic filing procedures, DOL has broad discretion on when, how and why it may conduct an audit. In the past, audits typically focused on providing backup recruitment or substantiating any foreign language requirements included in the application. But now, audits increasingly focus on “business necessity” and whether the requirements listed in the application for the position are specifically required by the company. DOL wants to ensure that the U.S employers don’t replace current U.S. workers with foreign nationals.

Under the business necessity standard, the employer must establish that the job requirements are reasonably related to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties. Carnegie Evaluations’ experts assist the U.S employers with such a Business Necessity expert opinion to address the business necessity for an offered position and establish that the job duties and requirements bear a reasonable relationship to the occupation ascertaining why the position’s prerequisite qualification is appropriate and necessary to perform the job in a reasonable manner in accordance with DOL guidelines and regulations.