Labor Certification: What Are “Unduly Restrictive” Job Requirements?
A labor certification ensures that no able, willing, and qualified American workers are available to fill a job position offered by a United States employer. It is also designed to protect the working wages and conditions specific to the applicable industry. Because obtaining an approved labor certification involves complex procedures, it is recommended that employers first consult with an immigration lawyer prior to starting the process.
The current labor certification process is completed using Program Electronic Review Management (PERM), which is a completely electronic-based system, and consists of three main steps: (1) obtaining a prevailing wage determination from the National Prevailing Wage and HelpDesk Center (NPWHC); (2) advertising the available job position and undertaking recruitment efforts; and (3) filing the labor certification with the DOL and complying with the audit process if selected.
Past blog posts have discussed the advertising and recruiting requirements mandated by step (2). For example, employers must place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.” See 20 C.F.R. § 656.17(e)(1)(i)(B).
No Unduly Restrictive Requirements
The advertisements themselves must contain at least seven types of information, one of which is that they must “[n]ot contain . . . terms and conditions of employment that are less favorable than those offered to the alien.” See 20 C.F.R. § 656.17(f)(7). This advertising requirement relates directly to the more general rule that the employer not prevent available American worker from accepting the job.
Accordingly, the “employer shall document that the job opportunity is described without unduly restrictive job requirements.” (emphasis added). Various criteria apply in determining whether a job is unduly restrictive. See 20 C.F.R. § 656.17(h)(1)-(5). Most importantly…
Customarily Required: “Job requirements must adhere to what is customarily required for the occupation in the U.S. and may not be tailored to the foreign worker’s qualifications.” Generally, this means that the job requirements and duties must not exceed the “Specific Vocational Preparation level” assigned to the occupation as shown on O*NET, which is an online database containing standardized information on hundreds of occupations.
The employer may qualify for an exception to this rule if he can adequately document that the unduly restrictive job requirements arise from a “business necessity.” A business necessity arises when “the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.” See 20 C.F.R. § 656.17(h)(1).
Foreign Language Requirement: Also, a foreign language requirement may not be included as a job requirement, as that obviously favors foreign workers.
Again, the business necessity exception is available, but this turns largely on the nature of the occupation—like a translator—or there must be a compelling need to communicate with a majority of the business’s employees, contractors, or customers in a foreign language. See 20 C.F.R. § 656.17(h)(2).
Combining Occupations: Occasionally, the offered job position will involve a combination of occupations. If this is the case, “the employer must document that it has normally employed persons for that combination of occupations, and/or workers customarily perform the combination of occupations in the area of intended employment, and/or the combination job opportunity is based on a business necessity.” See 20 C.F.R. § 656.17(h)(3).
If you or somebody you know would like to learn more about the labor certification process, please contact the immigration attorneys at the immigration law firm of JSO.
Disclaimer: This article is provided for informational purposes only. It is not offered as, and does not constitute, legal advice. Do not rely on this article without consulting directly with an immigration attorney about the specific facts of your case. This article does not create an attorney-client relationship.
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