PERM FOIA Litigation Reveals DOL Directives on Business Necessity and Finite Employment

Earlier this year, as a result of Freedom of Information Request Act (FOIA) litigation, the U.S. Department of Labor released a number of documents related to the agency’s policies and procedures in processing labor certification cases filed via the DOL’s Permanent Case Management System (PERM). DOL recently released additional documents; specifically, directives from November 2009 from William Carlson, Administrator of the Office of Foreign Labor Certification. The first directive addresses PERMs for finite employment opportunities. Pursuant to this directive, DOL may deny the PERM case if the job opportunity is “finite,” or not “permanent” as required by the regulations. The directive provides several examples of such job opportunities, including: medical residency, fellowship with an end date, internship with an end date, or seasonal work. If it is unclear whether the employment opportunity is finite, DOL analysts are instructed to recommend an audit. The second directive addresses acceptable documentation to establish business necessity. The second document may be particularly useful given that DOL appears to have recently changed its template audit notification letter to request business necessity documentation. Whenever DOL finds that a PERM application contains a job duty or requirement outside of what is normally required for the occupation, DOL will audit the case to determine if the employer can establish business necessity – i.e. demonstrate the job duty or requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job in a reasonable manner. DOL analysts are able to certify a PERM application  in certain circumstances even when they note that a job duty or requirement is outside what is normally required, because there is common DOL knowledge of the business necessity for the particular requirement. It is not recommended that you or your employer pursue labor certification alone. Please contact one of our attorneys who will guide you through PERM process.