How to Determine the Normal Job Requirements for a PERM Position
This article explains how employers state minimum education and experience requirements in PERM labor certification, how the DOL uses O*NET SVP classifications to judge whether requirements exceed the normal level, illustrates the calculation with a software developer example, and describes the employer's duty to disclose and justify business necessity on ETA Form 9089 when requirements are above normal, along with possible audits.
When submitting a PERM labor certification application, the employer must specify the minimum education and/or experience requirements for the sponsored position. If the employer's education and/or experience requirements exceed the normal level for the position as determined by the U.S. Department of Labor (DOL), the DOL may audit the case, and the employer will need to demonstrate the business necessity of those requirements. Although higher job requirements are generally defensible, employers need to understand how the DOL determines the normal requirements for a specific occupation and how to prove business necessity.
Special Vocational Preparation
PERM regulations require the use of the ONET classification system to determine the standards for education, training, and experience or special vocational preparation (SVP) classification for certain occupations in the industry. ONET collects actual data on hundreds of occupations and divides them into five job zones. Each job zone has a specific SVP range, and an occupation is assigned to a job zone based on its SVP: occupations with the lowest preparation requirements are placed in Job Zone One, and those with the highest preparation requirements are placed in Job Zone Five.
Determining the Normal Requirements for an Occupation
An occupation's SVP level ranges from one to nine and is rated according to the amount of preparation required. Level one indicates that the occupation requires only a short demonstration to be ready, while level nine requires more than ten years of experience. The SVP calculation includes not only work experience but also a certain level of education. For example, a bachelor's degree is equivalent to two years of preparation, a master's degree to four years, and a doctorate to seven years. If the employer's minimum requirements for the PERM position exceed the SVP range assigned to the occupation, the DOL will consider those requirements to be above normal.
For example, software developers are assigned to Job Zone Four, and the DOL considers two to four years of preparation to be normal. If the employer requires a bachelor's degree plus two years of experience, totaling four years of SVP, the DOL considers these requirements normal. If the employer requires a bachelor's degree plus three years of experience, exceeding four years of SVP in total, the DOL will consider these requirements above normal.
Proving Business Necessity for Requirements Above Normal
The PERM process requires the employer to test the U.S. labor market to find qualified American workers. When the employer sets the minimum requirements for the PERM position, the DOL assesses whether these requirements are normal and whether the employer is conducting a fair test of the U.S. labor market or is imposing requirements above normal that place potentially qualified American workers at a disadvantage.
If the employer's requirements are above normal, the employer must disclose this on ETA Form 9089 (Application for Labor Certification) and explain the business necessity of the higher requirements. If the PERM application is audited, the employer may need to provide further documentation proving that the job duties and requirements are reasonably related to the occupation in the employer's business and are essential to performing the job in the industry. Such audit requests may be received for Second Preference (EB2) positions requiring a bachelor's degree and five years of experience.
