William Stock, Esq., participated in a panel at the mid-winter AILA Conference which took place in Miami on February 17 and 18. Bill chaired a panel on PERM Updates, but I wish to focus on the article he presented in the Conference Materials regarding Business Necessity.
Bill's article emphasizes the importance of a well written and detailed narrative to document business necessity in the PERM File. This is a point well-taken and is, indeed, the best way to present business necessity documentation.
The DOL relies essentially on the business necessity standard announced in Matter of Information Industries, 88-INA-82 (1989) BALCA (en banc). This, of course, is a well-known two-prong test, where the Employer must document business necessity by proving the first prong, that the employer's requirements are essential to perform the job duties and the second prong, that the requirements are normal.
Although the concept is simple, the execution is more difficult. As Bill aptly notes, the best way to go about this is to prepare a detailed narrative to be signed by a responsible person such as the Employer or HR Manager, under oath, with data and details that only the Employer can cite. This type of affidavit is very effective to prove business necessity, however, it is highly labor intensive and requires a great deal of work by persons who are skilled in writing the English language -- like English majors and others who have mastered the art of effective writing. In fact, I recall the words of a successful practitioner who said that in his law office he hires people with excellent communication skills.
However, the business necessity statement should also be accompanied by objective data and documentation to bolster and corroborate the statement of the Employer. It is wise to note that in doubtful cases, the opinion of an expert can also be attached to the affidavit.
It follows then that the best prepared business necessity statement, will be based on a detailed narrative-style affidavit, signed under penalty of perjury, and accompanied by pertinent documentation and the opinion of an expert.
Implicit in this argument is that the business necessity statement must be presented to DOL for consideration, but the only way this can be done is if the application for certification is audited. The business necessity statement becomes part of the record file which must then be transmitted to the Certifying Officer for consideration.
In one BALCA case, the Certifying Officer did not accept the business necessity documentation and forwarded it to the Board, however, the Board approved noting that the Employer's affidavit swayed contained information that is not on the PERM Form 9089. This is a basic peculiarity with PERM -- that the Employer's only opportunity to get anything in the record may not be on the form itself, but in the supporting documentation in the record file. Some practitioners advise putting as much information about business necessity on the form in any of the available spaces in Part H, such as the job descrition itself, the statement of special requirements, or even in the statement of the alien's qualification, Part J & K.
The point of all of this is that where business necessity is the issue, the manner of presentation must be credible, probative, convincing, and easy to read. As it has been said many times, "The Devil is in the details," and in a PERM case a detailed presentation of the business necessity statement will help win the case.
Employers and attorneys should also review the PERM regulations so as to understand the standards that must be proved throughout the process. Matter of Information Industries only applies to the employer's job requirements if not deemed normal in the United States.
Entirely different standards apply to combination of job duties, language requirements, qualifications gained on the job, live-in requirements, and actual minimum requirements, all of which have specific formulas in the PERM Rule that explain how to document that that they do not violate the regulations.
The PERM Rule established new regulations for Employer's to follow, as of May 28, 2005, however, pre-existing BALCA decisions, may also be considered valid, unless they conflict with the PERM Rule itself.
While BALCA decisions are not truly precedent decisions, they may be used as interpretive guidance to prepare PERM applications and to respond to audits or negative findings.