Your first task as an employer in preparing a labor certification application (sometimes referred to as an application for permanent alien employment certification) is to identify the “minimum job requirements.” While most employers typically seek to hire only the most qualified candidates, the Department of Labor (DOL) requires you to boil down your hiring criteria to the bare minimum. There are several factors to consider in determining the actual minimum requirements. They are:
- the foreign national employee’s qualifications at the time of hire
- your internal job description
- your company’s past hiring practices, and
- industry standards.
Why You Can ‘t Write the Job Description to Match the Employee’s Qualifications
While it may seem logical for you to tailor the job requirements to the background of the foreign national employee whom you are sponsoring, the regulations specifically prohibit this practice. The labor certification process is meant to protect jobs for U.S. workers. To further this goal, the DOL requires employers to be offering a bona fide job opportunity, one that is available to qualified U.S. workers. You will only be inviting trouble if you attempt to hire a foreign national and then tailor a job description to that person, such that no U.S. worker could qualify.
As a practical matter, the foreign national’s qualifications, your company or organization’s internal job description, and your past hiring practices will dictate the minimum requirements for the labor certification application.
For example, let's say that the foreign national joined your organization with a bachelor’s degree and three years of experience, your internal job description indicates that a bachelor’s degree and four years of experience are required, and you previously hired only persons with bachelor’s degrees and five years of experience. In this case, the foreign national’s qualifications become the lowest common denominator and therefore serve as the actual minimum requirements.
Conversely, if the foreign national had five years of experience, but you had hired persons with only three years in the past, three years would be the minimum. In the former case, it would appear that you were tailoring the application to the sponsored employee, but actually what happened is the employee in that case lowered your requirements.
Exceptions to the Rule on Experience Gained With the Employer
There are two exceptions to the rule saying that employers must limit the job requirements to the qualifications that the foreign national could satisfy at the time of initial hire:
(1) when the employee has experience in a "different" job with the employer, and
(2) when it’s infeasible to train a new employee for the job the foreign national has been doing (while on a temporary visa).
Experience in a Different Job
If you can demonstrate that the foreign national joined your organization in one capacity, continued in that role for a period of time, and then moved into a new position, it may be possible for you to factor that experience into the minimum job requirements. You would need to distinguish the two positions to demonstrate that the current position, for which you are sponsoring the employee, is a different position, such that it would be possible for an external candidate to qualify for the job. To qualify as "different," the new position must involve job duties that are at least 50% different.
Infeasible to Train a New Employee
In the second scenario, you need to demonstrate that it would not be feasible for you to hire a new employee without the required experience and then train that person as you trained the foreign national employee. You would need a legitimate business reason, such as a change in the industry or your business, such that you could not divert resources for training. Be prepared to back up your assertions with supporting documents, because the DOL will not accept a mere statement. This option may be possible more in theory than in practice.
The policy in these exceptions is once again to protect jobs for U.S. workers. The DOL wants to ensure that employers are not hiring foreign nationals, training them in house, and then claiming that the only way someone can qualify for the job is to have the in-house training. In this situation, only an employee currently or previously employed with the sponsoring employer could have the experience, and the DOL therefore would deem such a position not open to external candidates.
How Industry Standards Affect Your Job Requirements
A further restriction on the employer in identifying minimum job requirements is the standard in your industry.
The DOL compiles statistics and has prepared summaries of various occupations for what it deems to be the minimum requirements for entry into those occupations. If you list job requirements that are beyond those that the DOL deems the usual minimum, you may need to document the basis for doing so.
You would handle this in a letter and by attaching supporting documentation showing the “business necessity” for the requirements. The letter needs to provide context for the position and the minimum job requirements. Additional documents may include job postings for comparable jobs at similar organizations or technical product literature. The supporting materials need to demonstrate/illustrate why a candidate must have the minimum education and experience requirements you have identified.
Through careful planning and analysis of the foreign national’s qualifications, internal job descriptions, past hiring practices, and industry standards, you can identify a set of job requirements that accurately describe the job opportunity and comply with the DOL’s guidelines.