"Business Necessity" Standard Sparks Increase in PERM Audits

Since March 2005, the filing of a labor certification application—typically, the first step in the permanent residence process—has been completed through the PERM system developed by the U.S. Department of Labor (DOL). The PERM rules created an attestation and audit system that has facilitated expedited adjudication of labor certification applications.

Until recently, audit letters sent by DOL have not been widespread. However, the number of audits issued has surged in the last several weeks—and this trend will only continue.

With the PERM electronic filing procedures, DOL has broad discretion on when, how and why it may conduct an audit. In the past, audits typically focused on providing backup recruitment or substantiating any foreign language requirements included in the application. But now, audits increasingly focus on "business necessity" and whether the requirements listed in the application for the position are specifically required by the company.

Under the business necessity standard, the employer must establish that the job requirements are reasonably related to the occupation in the context of the employer's business and are essential to perform, in a reasonable manner, the job duties. In the recent audits, DOL has requested documentation of business necessity for positions requiring a master's degree or equivalent (e.g., bachelor's degree and five years of progressive post-baccalaureate work experience). Classifying a position as one which requires a master's degree or equivalent can place the foreign national in a more advantageous position with respect to visa backlog delays during the last step of the permanent residence process.

Without an audit, labor certification applications typically take 30 to 60 days to process. An audit will add at least 60 days or more to the overall PERM processing time. After DOL issues an audit letter, the employer has 30 days to respond to the request for information and documentation.

If your company receives audits on pending PERM cases, we will work with you to develop the best response for each case. Also, with the increased scrutiny of business necessity, we may request additional information upfront when working on a new PERM case. This will assist in analysis of the best PERM and overall permanent residence strategy, as well as to have the necessary information in the audit file so a response can be prepared quickly in the case of an audit.

Travel Update: Proof of Citizenship Required for Land/Sea Travel as of January 31, 2008

On January 31, 2008, pursuant to the Western Hemisphere Travel Initiative (WHTI), all adult travelers will be required to present proof of citizenship and proof of identity when entering the United States through land and sea ports of entry between the United States, Canada, Mexico, the Caribbean and Bermuda. Children ages 18 and under will only be required to present proof of citizenship.

Under current requirements, if traveling by air, all travelers, including U.S. and Canadian citizens, must have a passport or other accepted form of documentation to enter or depart the United States. As early as summer 2008, all travelers who enter or depart the United States by any means—including land and sea—will be required to have a valid passport or other acceptable document. The State Department has also indicated that it intends to make available a limited-use Passport Card, specifically for land and sea travel from these neighboring countries. Current turnaround time for a passport with the State Department is four to six weeks.

Save the Date: Faegre & Benson's Annual Immigration Seminar

For more information on PERM and business necessity, the new I-9 which takes effect on December 26, as well as other immigration issues important to the business community, please save the date of Wednesday, January 30, 2008 for Faegre & Benson's annual immigration seminar.

This year's seminar, titled "Passport to Success: Workplace Enforcement, the New I-9 and Visas for A Global Workforce," will include main sessions on the new I-9, workplace enforcement, immigration legislation, temporary work visas and the permanent residence process. Breakout sessions will also be offered again this year and will include advanced H-1B issues, PERM strategies, outbound visas and immigration issues specific to health care occupations. This year's seminar will offer both morning and afternoon sessions. Attendees may participate in the full-day seminar or attend either the morning or the afternoon sessions.

Richard Crespo, senior trial attorney with the Department of Justice's Office of Special Counsel, is scheduled to be the keynote speaker at lunch. E-mail invitations will be sent in early January.