有关PERM申请过程中BUSINESS NECESSITY

By: Beth Robertie, Associate 在PERM的申请过程中，劳工部有时会要求雇主出示Business Necessity Letter证明并解释其学历和经历的要求与公司性质及工作内容的相关性。以下是对于Business Necessity Letter的标准和在其准备中的重要讯息谨供各位参考。 The PERM process can be a frustrating one, requiring much interaction between an attorney and employer when working out the details of filing the Labor Certification Application through the PERM process. Additionally, when discussing the recruitment process, and specifically when constructing the job requirements, there needs to be a considerable amount of dialogue between the attorney and the employer. The job requirements must be restrictive enough to target the skills and abilities that the position requires, but not so unduly restrictive so as to create the appearance of tailoring them to the alien beneficiary. Some requirements are easily justified, while others are not so clear cut. For example, in the case of a multi-national company, it is easy to understand that a position of International Tax Accountant who must communicate regularly with counterparts in Japan or France must be multi-lingual, and therefore the job opportunity will require a foreign language. However, it may be less easy to explain why a general accountant position, that will deal primarily with only English speaking companies/clients, would require a foreign language. In either of these instances, the Department of Labor may wish for the employer to justify the foreign language requirement by requesting a ‘Business Necessity Letter.’ In a Business Necessity Letter, employers are given the opportunity to explain why the job requirements for a given position are as they are, and how they relate to the duties of that position. The standards for business necessity letters have not changed noticeably since the former Reduction in Recruitment (RIR) process for the Labor Certification Application. However, with the possibility of an increase of this request since the introduction of PERM, there is still some confusion about what should be included in such a letter. Many of the crucial aspects of a business necessity letter appear to be, and are, common sense. However, very often these aspects are so common sensical that they are not fully explained by the employer, or even overlooked completely. This guide is provided in an effort to avoid these oversights. As established by case law, the purpose of the business necessity letter is to give the employer the opportunity to demonstrate that the job requirements: 1. bear a reasonable relationship to the position in the context of the employer’s business, and 2. are essential to perform, in a reasonable manner, the job duties as described by the employer. Essentially, the employer should focus on the alien beneficiary’s role in the company and explain why the job requirements are important to the alien beneficiary’s successful completion of their job duties. When drafting an effective business necessity letter, the best place to start is a detailed explanation of the nature of the business. Obviously, it would be a mistake to confuse the reader with overly-technical descriptions or industry jargon. However, a clear and thorough explanation of the business in question will go far in laying the groundwork for an effective letter. Equally important is a brief and concise discussion of the company’s business plan, keeping in mind the alien beneficiary’s role in that plan. Once the employer has explained the “big picture” nature of the business and where the business is going, it is easier to explain why the alien beneficiary’s role is an important fixture in the overall plan. The employer’s next step should be to discuss the company’s needs relating to the position offered to the alien beneficiary. Why are those specific job requirements so important to the role that the alien beneficiary will be playing in the company? At this point, it would also be helpful to discuss the company’s past operation with relation to that position. Who has filled that position in the past, if it existed at all? Is it a newly created position based on a new direction that the company is taking, or is it a well-established position that is necessary to the company’s operation? Once the employer has detailed why the position is important and how it has been filled in the past, then they are ready to conclude with a more direct discussion of the job duties. Essentially, the conclusion of an effective business necessity letter will tie together the job requirements and the job duties. Again, much of this discussion may seem obvious to the employer, and therefore unnecessary. However, they must keep in mind that to those outside of the industry, it may be unclear why and how the requirements are related to job duties. Each of the job requirements listed should correlate to a job duty in some way. Although the drafting of a business necessity letter may seem like a daunting task, keep in mind that the employer is not obligated to write the letter exclusively based on their own opinion and expertise. In fact, they should make an effort to include information from outside sources such as: statements from outside experts, excerpts from publications, internal documentation and correspondence, and affidavits from customers and other employees. By peppering the letter with quotes from outside sources, the employer’s case is strengthened and there is less of a burden on the employer to establish the business necessity on their own. 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.fan-law.com (Chinese) www.fanuslaw.com (English) CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan, Fitzpatrick & Thompson, LLP. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]