PERM applications involve multiple steps that require attention to detail and strict adherence to regulations. The process can be confusing for petitioning employers, as the PERM application and recruitment process is unlikely to have much similarity to the employer’s normal hiring process. The process is fraught with potential pitfalls, including those discussed below.
True Minimum Requirements
Employers often have difficulty in divorcing the notion of their ideal candidate from the true minimum requirements for the prospective PERM position. Petitioning employers tend to think of the beneficiary and their experience and qualifications when thinking of the requirements for the PERM position. This is a flawed approach, as it will lead to the employer tailoring the job description and requirements to the beneficiary’s qualifications, which could result in a denial due to the job description being unduly restrictive. The employer needs to think of what the minimum qualifications are to perform the job, and not what they would prefer. It can be helpful if the employer imagines that the beneficiary is no longer available for the job and if they had to find someone else to do the job, what qualifications they would accept.
Subjective Language
When submitting the minimum qualifications for the PERM position, the employer should avoid subjective language for the true minimum requirements. Terms such as “good,” “extensive,” or “strong” should not be used, and neither should other subjective qualifications like “good sense of humor” or “gets along with others.” While the employer might routinely use such subjective terms and requirements in its normal recruitment, the PERM process is not “normal.” The issue with using subjective criteria is that they cannot be quantified. If the employer were to state that a requirement was “extensive experience with database management,” it would be unclear as to what would qualify as extensive. Instead, the requirement should be stated in quantifiable terms such as “two years of experience,” which can be objectively measured. If the employer were to use a subjective requirement to disqualify an otherwise qualified applicant, they would have a difficult, if not impossible, time in justifying such to the DOL in the event of an audit.
Prior Experience with Petitioning Employer
It is important that the employer understand that, generally, the beneficiary cannot qualify for the PERM position through experience gained with the petitioning employer. The two instances where experience with the petitioning employer can be used to qualify for the PERM position are when the prior experience is not substantially comparable to the PERM position or when it is infeasible to train a new employee. For the prior experience to not be substantially comparable to the PERM position, the two positions must be more than 50 percent different. To demonstrate that the positions are not substantially comparable, the petitioning employer will need detailed job descriptions of the positions, listing the job duties and the percentage of time devoted to each duty. For infeasibility to train, it is not sufficient for the employer to merely state that it is infeasible to train a new hire, as the burden to demonstrate such is high. The employer should provide a detailed statement with specific and concrete reasons along with supporting documentation, if available, to demonstrate that it would be infeasible to train a new employee.
Beneficiary’s Qualifications
The beneficiary of the PERM application must possess all the necessary requirements when the PERM application is filed. This includes all education, experience, skills, and licenses required for the position. If a driver’s license is a minimum requirement, the beneficiary must possess such license prior to the PERM filing, and it is not sufficient to merely obtain the license prior to beginning employment in the PERM position. If the beneficiary is already employed by the petitioning employer in the PERM position, the employer should be able to demonstrate that the beneficiary met the stated minimum requirements when he or she was initially hired in the position. The petitioning employer should get documentation and verify that the beneficiary meets all requirements prior to beginning the PERM process. The beneficiary’s qualifications for the position must be explicitly listed on the PERM application, as failure to do so could lead to a denial.
