How an Expert Opinion Letter for PERM Could Potentially Prevent an Audit from the DOL

By: Rachel Horner

In our last PERM post, we discussed steps you can take to help ensure your PERM advertising campaign is successful. But what about other potential challenges from the Department of Labor (DOL), unrelated to a position’s advertising? Often, the DOL will take issue with a position’s requirements, its applicants, or its relation to previous positions held by the sponsored worker, leaving it on attorneys to respond swiftly and firmly.

Fortunately, the team at Park Evaluations has put together a number of Expert Opinion Letters that, when prepared by our network of professors and industry experts, can directly tackle several of the DOL’s challenges. Below is a rundown of how our expert opinions letters can be utilized in case the DOL asks….

1. Why did you not hire the American candidates who applied the position?

While the primary question a PERM advertising campaign answers would be something along the lines of, “How can you prove that any Americans knew this job existed?”, this particular dispute takes issue with the Americans who did in fact apply. The DOL will often question why none of the (presumably) qualified applicants would be eligible for the job over a foreign candidate. The simple fact may be that none of the other applicants are truly qualified for the role, but the DOL will usually expect evidence, especially if there are a high number of applicants to dispute.

 One way to address this would be through a Perm Audit Expert Opinion Letter. This letter tasks a qualified expert (in a field related to the proffered position) with analyzing in detail why each American applicant is not qualified for the role in question. Our expert will weigh the credentials of each candidate against the requirements of the position and the needs of the petitioning company, in order to demonstrate the reason why a particular candidate would be ill-suited to function in the position in question, and why hiring one of the unqualified domestic candidates could prove risky to the company’s operations, thereby proving the only candidate able to successfully perform the role is the sponsored foreign national. Park’s letter can dispute from 2 or 3 applicants to several dozen.

Docs needed for this letter: Position description, position requirements, and full resumes for all the applicants

2. We believe this position could be very similar to the entry-level role the foreign national held previously. Did you set these standards for the role just to prevent American applicants from qualifying, and the job can in fact be performed by someone with lesser qualifications?

This is a tricky question, commonly seen when a petitioner is looking to retain a foreign national’s services in a new role. Essentially, if the DOL sees that a foreign national is being sponsored for a position that has requirements beyond the entry level requirement of a Bachelor’s degree (for example, a Bachelor’s degree plus 5 years of experience), they will want to see evidence that the foreign national would be functioning in a substantially new, presumably more difficult, position than the one they had previously held—one that would warrant all new job requirements.

If the DOL sees little difference between the new position and the previous one, they’ll accuse the petitioner of listing the loftier job requirements in order to make the position unattainable for a large number of American applicants, while matching the foreign national’s credentials almost exactly; all for a position that had been deemed entry level when the foreign national was first brought over to the states.

Combatting this challenge with a Position Comparison Expert Opinion Letter can be a smart route to go, and Park offers these letters from professors across a wide variety of fields. The expert will explain how the candidate’s new position is at least 50% different from their previous one, through an analysis and comparison of their different tasks, levels of independent judgement, technical knowledge, and/or supervisory responsibility each role entails. This will therefore show that the new role has more responsibilities and is progressively more difficult, therefore proving the need for different, more advanced job requirements.

Docs needed for this letter: Highly detailed job descriptions for each of the positions, including main duties, sub duties, and different skills/technologies utilized, where applicable

3. Perhaps this role is different from the previous one. But we’re still not convinced the position requires the qualifications you stated. Why should the petitioner have a need for a candidate with such an advanced skill set to fill this role?  

Even if the DOL is satisfied that the proffered job is a new and unique position, seen by an adequate number of Americans, and featuring no suitable applicants beyond the sponsored foreign national, they still can question whether the position requirements themselves are accurate for the level of competence the role seems to entail. They’ll need evidence that outlines why the position might require, for example, a Master’s degree plus 5 years of experience. In other words, why does the petitioner really need someone with those credentials? Couldn’t they settle for an American with slightly lesser credentials, rather than bring someone over from abroad?

The simple fact is, many positions are simply too specialized, too high-leverage, and too critical to an organization to risk giving to someone who’s anything less than 100 percent qualified, which is why there is a “Business Necessity” for the petitioner to employ the foreign national. Park’s Business Necessity Expert Opinion Letter was created to make this exact argument. This service enables the expert to provide a deep dive into the position’s responsibilities, the level of business-critical knowledge required by the candidate, and the petitioner’s own operational needs, in order to create an in-depth report explaining why the position’s advanced requirements (Bachelor’s plus experience, Master’s, Master’s plus experience, etc.) are appropriate and necessary. The service can be bolstered by a phone interview or virtual office visit between the professor preparing the letter and the position’s hiring manager(s) in order to allow for even further insight and to create a comprehensive, robust counterpoint to the DOL’s challenge.

Docs needed for this letter: Detailed job description including main duties, sub duties, and different skills/technologies utilized, where applicable; the full job requirements (degree level, degree field, and number of years of experience where applicable), and a description of the petitioner’s business

To request an expert opinion letter, email [email protected].

This is part 2 of a two-part series on preparing for PERM applications. In case you missed it, view part 1 here.