8/13/2005

The employers have been witnessing flood of denials of the initial PERM applications over past months mostly on the grounds of technical or procedural violations in the registration and application. However, as it now moves onto the next phase of the application itself, the employers are predicting that there will be a flood of 30-day letters issued on the substantive issues such as business necessity. 

The business necessity issue is more real because of the DOL's abandonment of the traditional standards under DOT and initiation of the new standards and concepts under Job Zone concept. These new standards make most of the conventional requirements for the job "not normal" to such job and unless such requirements are justified by the so-called "business necessity," the application will be denied on the substantive issue.

It is thus time for the PERM filers to make oneself familiar with the "business necessity" standards. These standards have been established by the BALCA, the appeal board of the labor certification applications. It is a two-prong test to overcome the business necessity challenge. The first prong is: The employer must establish that the job requirements in the labor certification application which are considered not normal under the Job Zone or other concept indeed "bear a reasonable relationship to the occupation in the context of the employer's business." 

The second prong is: The employer must also establish that their job requirements in the application are "essential" to perform, in a reasonable manner, the job duties as described by the employer in the application. These standards are not as tough as the similar concept which is applied in other areas of law which requires a proof that without such job requirement the employer cannot operate its business, but it is still tough standard for the employers to satisfy in a substantial number of situations. 

The rule has been there all along in the history of this country's labor certification system, but it poses a substantial threat and challenge under the PERM program because of the concept of the Job Zones that do not reflect the "real world" business practice. This problem is created mostly by the "O*NET" system rather than by the PERM system. Until the O*NET system is revised to reflect the real world practice in the industries, the employers and the lawyers will have to deal with the challenges and threats of denial based on the business necessity rule.