business necessity
natasha13 said:
My employer has advertised my position as needing a minimum of MS with 2 years of experience. I have a MS in Electrical Engineering along with 2 years experience. We are okay with the prevailing wage too. But now I find out that since the position "Electrical Engineer" like most other engineering jobs comes under Job Zone 4, the minimum requirements are a BS only. Hence for applying under EB-2 we will have to show M.S. as a business necessity, is that right? Also I read on the forum that all applications showing business necessity will most likely be audited, is that true?
In the above scenario does it make sense to start the advertising all over again asking for BS only and filing for EB3, thus not having to provide business necessity?
OR
Continue as planned with MS+2 yrs requirement => EB2 and take the risk of showing business necessity.
Please voice your opinions, thanks!
Does business necessity really survive under PERM?
DOL's concern over fraud permeates PERM. They should be concerned. DOL does not have the capacity, the political will, or the money to audit most labor certifications. This leaves the PERM system dependent on the good will and honesty of those who use it, a necessary but uneasy state of affairs. This comes at a time when the political imperative to move lots of cases through the system at full throttle may well be irresistible.
The immigration bar rightly screamed bloody murder when the notice of proposed rulemaking eliminated the doctrine of business necessity. DOL listened, it seems. Business necessity is back as articulated by the BALCA in Information Industries. Do not celebrate so fast! Who is going to be honest or brave enough to use it, particularly in a web-based submission when back-up justification is not part of the form? Question No 12 on Section H of the ETA 9089 asks whether the job requirements are "normal" for the occupation. More on that later. Now, just consider that, if they are not, the employer must be prepared to justify them on grounds of business necessity. A blind man could see that anyone who checks the "yes" box to this question will be audited. So, the price of invoking business necessity will be a DOL audit, thereby dashing any hopes of a quick decision, and negating PERM's raison d'etre. While the audit procedures outlined in 20 CFR 656.20 require an employer response to the audit letter within 30 days, with one possible 30 day extension tacked on, there does not appear to be any time deadline by which the Certifying Officer must render a decision on the audit.
This puts honest lawyers and conscientious employers in a quandary. Do they admit that their job requirements are "abnormal" but necessary, knowing that an audit is coming, or do they abandon business necessity as interesting theory but impossible practice? The irony, of course, is that dishonest filers, be they lay or lawyers, will face no such moral dilemma. They will simply check "No" to Item No.12, secure in the knowledge that their odds of skating through without further complication run strongly in their favor. Chances are that DOL will look to the IRS system of random audit control and implement a sophisticated profiling database that may favor larger employers at the expense of their smaller brethren, who are the true engines of job creation. Even here, however, it would not be surprising if even corporate giants get audited since it is impossible to control the forces that PERM will unleash.
PERM does nothing to address the fundamental reason for fraud in the first place, namely employer control over the sponsorship process that ties a particular alien to a specific employer. DOL cannot act on its own and Congress shows little inclination to get involved. No votes or campaign cash to be mined there. Only adoption a point system which focuses on the permanent characteristics of the alien, as opposed to the temporary needs of a single employer, can liberate aliens from the position of subordination and dependency whose existence make fraud possible. Moreover, since the benefit gained allows for perpetual residence in the USA, why should the transitory requirements of any employer, as opposed to the alien's immutable talents, be the fulcrum on which the entire system rests? The notion of portability has found acceptance in the H1B and adjustment of status contexts. Why not extend it across the entire spectrum of the employment-based immigration system? It is a convenient halfway point on which all interested parties of good will can agree without having to go through the agony of a total system overhaul.
