Recently, the Office of Foreign Labor Certification (OFLC) has been issuing a number of audit requests for PERM applications that require proving the business necessity of job duties or requirements. Fortunately, the OFLC has released a directive to help clarify what kinds of documents can help meet the standard of review. There are generally two issues that should be addressed to show the business necessity of a listed job duty or requirement: that it is a normal requirement in the industry, and that it is essential to the position. Common documents used to show business necessity include: employer or expert statements describing how the duty or skill relates to the business and showing that it is a typical requirement in the industry. Additionally, résumés from current or past employees in the position can show the employer has required this in the past, and that past employees have met the requirements. Moreover, evidence from other employers in the industry — such as job advertisements or résumés from people in the same position — can help show that they also require the minimum duties or skills requested. Business plans or contracts can demonstrate that the job duty or requirement is essential to the business. Finally, a statement from an employer explaining the negative impacts on the business can help convince an analyst of the necessity of the requirements.
Also keep in mind that the job must be a permanent, full-time position and cannot be finite or contracted. Employers are advised to prepare an anticipated audit response, including a business-necessity argument addressing both the industry standard and the position.