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Employment Based Green Cards: Justifying the job Requirements of Your job With a Business Necessity Letter

January 19, 2010

Obtaining a Green Card through employment is the dream of millions of workers world-wide. For better or worse, the USCIS and the Department of Labor have placed various barriers that need to be overcome before an alien can even apply for an employment based immigrant petition, or green card. For educated and specialized workers in the EB-2 and EB-3 employment based preferences, the tallest barrier is the PERM process and the recruitment that needs to be undertaken before a visa can be applied for. To the chagrin of many, the culmination of the Labor Certification process is a big fat DOL Audit, asking why the employer required someone with so much skill for the position offered. Don’t panic! You are not overqualified. There are business necessities for employing highly qualified individuals. A business necessity letter will show the DOL just that.

The Federal Government seems to have placed so many restrictions on the job related skills that an employer can look for, that there appears to be a disconnect between business reality and business need. This is where a business necessity letter can help an alien and employer put forth a good faith effort in recruiting skills that meet a company’s needs, without unjustifiably disqualifying American citizens from a job. Simply put, a business necessity letter shows the government that a certain amount of experience and education is needed for the employer’s particular job, even if the government thinks that a person without that skill would perform satisfactorily in that job.

For example, an employer, during the PERM recruitment process has asked that potential applicants for the position of systems consultant possess a master’s degree and two years of experience. The Department of Labor may Audit this labor certification application, pointing out that an entry level consultant with only a bachelor’s degree should be able to do the job of systems consultant. The employer can then rebut the government’s argument showing a business necessity for needed a worker with a master’s and two years of experience. In this case, a possible business necessity could be that the employer’s client demands a systems consultant with at least a masters and two years of work experience. Other valid business necessities for education and experience include the complexity of the job or the knowledge and familiarity with a client’s product.

The object of the business necessity letter is to shift the focus from what the government perceives as normal for the occupation to what the reality of the situation is. To do this, the employer needs to show two things; First, that the requirements are reasonably related to the job offered in the context of the employer’s business and, Second, that the extra job requirements are essential to perform, in a reasonable manner, the job duties as described by the employer. The concept is easy, however, the careful drafting of such an explanation can be deceptively difficult, and should be left for a qualified attorney.

This blawg has focused only on the instances where the employer asks applicants for an elevated amount of education and experience. However, other classic forms of business necessity include requiring a combination of occupations, knowledge of a foreign language, or that the employee live at the site of employment. All of these instances will raise red flags before the Department of Labor, making them appear as if they have tailored the job requirements to the alien’s particular skill set. These instances can also be overcome with a thorough, accurate and complete explanation of the reasons that this skill is needed.

In conclusion, if the DOL has audited your Labor Certification application, don’t panic! Just remember, you are not overqualified for the position offered. Ask the lawyers of Shihab & Associates., Co LPA for help and explain, through a business necessity letter , why you are the correct fit for your job.

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