To file for a PERM labor certification, a sponsoring employer must provide a job offer. This is for the job that the alien (beneficiary) will do once the permanent residence is approved.
The job must be full-time and “permanent”, and the job location must be in United States. It must be a bona fide job opportunity and must not be a sham. The job requirements must be reasonable, and the job opportunity should not involve unlawful discrimination. The job should not be available because of a strike or lockout. The terms, conditions, and environment of the job should not be contrary to law. The job opportunity has been and should clearly be open to any qualified U.S. worker. An employer-employee relationship must exist. The employer must hire, fire, supervise, and provide payment to employees. The job must have existed before the alien was hired, or the employer must document that there was a major change in the business that created the job after the alien was hired.
The DOL generally does not regard job offers from relatives or businesses in which the prospective immigrant owns an interest as being made in good faith.
Job requirements must be adhered to customary requirements for the occupation in the U.S. and may not be tailored to the beneficiary’s qualifications. The job requirements must generally be those required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation as shown in the O*NET Job Zones. However, the requirements can vary from that based on the business necessity, which can be established by demonstrating that the job duties and requirements have a reasonable relationship to the occupation in the employer’s business context and are essential to performing the job in a reasonable manner.
If the job requirements have a combination of occupations, the employer must provide documentation to prove that
- it has normally employed such persons
- workers customarily perform the combination of occupations in the area of intended employment
- the combination of job requirements is based on a business necessity.
Documentation for combination occupations can be
- position description and relevant payroll records
- letters from other employers stating their workers normally perform the combination of occupations in the area of intended employment
- combination occupation arises based on a business necessity.
Foreign Language Requirements
The employer cannot describe the job in unduly restrictive terms. That is, the employer may not impose requirements that are not a legitimate part of the job. This is particularly true of requirements that the employee speak a language other than English. While this is usually the easiest way to demonstrate that there are no similarly qualified U.S. workers available, if the employer includes such a requirement, the employer must prove that the job being offered could not be successfully performed without it. Proof usually consists of a detailed letter explaining why this is the case, together with other evidence, such as telephone bills to a foreign country or foreign language documents that are regularly used in the job.
There are certain jobs where foreign language would be required, such as
- The nature of the job obviously requires one. E.g., translator or
alien needs to communicate with a large number of the employer’s customers,
contractors, or employees who cannot communicate effectively in English. To prove that, the employer must provide:
- Documentation regarding the number
and proportion of its clients, contractors, or employees who cannot communicate
effectively in English, or
A detailed plan to market products or services in a foreign country;
- A detailed explanation of why the job duties require frequent contact and communication with customers, contractors, or employees who cannot communicate in English, and why it is reasonable to believe so.
- Documentation regarding the number and proportion of its clients, contractors, or employees who cannot communicate effectively in English, or
Alternative experience requirements must be substantially equivalent to the primary job requirements.
If the alien is already employed by the sponsoring employer and doesnot meet the primary job requirements but only potentially qualifies due to alternate requirements, the labor certification application must state that any suitable combination of education, training, or experience is acceptable.
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