Business necessity justification: when and how

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wildscenebob

Registered Users (C)
According to PERM:
"The employer must justify in writing any special skills or experience required for the position in a fashion that satisfies DOL’s “business necessity test.” "
Is this true?

So...

1. if I want to include a skill in my job requirements (say the Java language, for example) in order to disqualify candidates, my employer needs to show business necessity justification?

2. How do you show business necessity justification? In this case, how do you show that Java is essential to perform the job’s duties?

3. Do you show this justification when you get audited? Or do you show this when you first submit the application?

4. Having skill requirements (besides education and experience) as part of your job requirements - does that invite an audit?
 
I don't think nobody knows much about this at this point. On the PERM form, you have to fill out Special skills, special requirements. These seem to tbe the business necessity section. For example, if you are a programmer using Java daily, obviously, Java is a business necessity as the business depends on a competent Java programmer as Java is an essentail part of the buiness, meaning Java skills are business necessity. I have not read anything on how the DOL will actually do this other than that the skill, requirement must be a essential part of the job and thus of the business. In other words, make a direct connection between the skill, the job, and the nature of the business and how the business depends on the skill in questions to satisfy customers or make money or maintain an operation or whatever it may be.
 
Bjorn - thanks again - if you fill out special skills, special requirements... you are filling out business necessity - does that mean ==> AUDIT?

In other words, any business necessity items, or anything that requires passing the "business necessity test" imply that your case will be audited?
 
wildscenebob said:
Bjorn - thanks again - if you fill out special skills, special requirements... you are filling out business necessity - does that mean ==> AUDIT?

In other words, any business necessity items, or anything that requires passing the "business necessity test" imply that your case will be audited?
Click to expand...

YES
 
Probably yes. It then becomes the issue what an audit entails and how qualified the DOL officer is to judge the business necessity reason. . In other words, what exactly happens during an audit? Most professional jobs have specific skill sets, so it is reasonable to believe that almost all PERM cases will have special skills filled out and are therefore subject to audit. Will DOL really audit all cases? What the DOL will do with all these audits is probably anybody's guess at this point. It's reasonable to believe that the more special requirements listed, the more auditing will occurr. The question is also that one DOL officer will make judgements on a huge variety of jobs, but is one DOL guy really qualified to determine if a special skill meets the business necessity test. Some skills and jobs are so complex that only people in that particular business understand the necessity, so how can one DOL officer who may have no clue of what the business and skill set are all about to make a sound judgement on business necessity regardless of an audit or not? I honestly think that the DOL cannot even answer this.
 
Qualifications

So, is it possible that during the audit, it could come out that a candidate is Overqualified for a given job. What does an audit really mean? Is it that the officer has to review the file as a decision cannot be made in a "straight-forward" manner?

:confused:
 
You are raising a good point regarding overqualified. I don't know if this is cause for a denial simply because the DOL pretty much forces companies to dumb down positions for recruitment purposes. As a result, companies cannot recruit for the qualifications they want to hire for, which is what you may have. I'm not even sure DOL knows the answer to this one. Only time will tell.
 
PERM timming

So, when do you think the lawyers would have a good handle of what to expect or how to approach the PERM system. Do you think till the end of year is a good timming?
 
I think waiting another few months is a good idea if you have a visa that allows you do be patient. In a few months, lawyers will have learned how the PERM game is played by the approvals and denials that have been issued.
 
Pharma_LC said:
So, when do you think the lawyers would have a good handle of what to expect or how to approach the PERM system. Do you think till the end of year is a good timming?
Click to expand...

Probably by the time when there is a retrogression for EB2 as well :)
 
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