Pre-Hire Testing Requirement in PERM Labor Certification Applications

Pre-Hire Testing Requirement in PERM Labor Certification Applications

During an Office of Foreign Labor Certification (OFLC) Stakeholder meeting held on September 12, 2014, we learnt that the Department of Labor (DOL) is currently denying PERM applications where the employer has pre-hire testing requirement for a job opportunity with a Bachelor’s degree in a technical field but no work experience or special skills requirement. These PERM applications are denied without an audit or an opportunity for the employer to justify the testing requirement under business necessity. The DOL’s reasoning for these denials is that if the job opportunity does not require work experience or special skills, pre-hire testing cannot be appropriate actual minimum requirement for the job. It is to be noted that the DOL’s reasoning is inconsistent with DOL’s past practices of approving PERM applications involving standard pre-hire testing requirements without an audit in the past years.

In addition, past Board of Alien Labor Certification Appeals (BALCA) cases have held that pre-employment tests are permissible in appropriate contexts, such as in determining whether an applicant is capable of performing the job duties for the position (See Matter of Franco Wood Crafting, Inc., 98-INA-131 (BALCA December 22, 1998). The DOL has responded during the Stakeholder meeting that it will examine this issue and respond in the next meeting. In the meantime, employers should refrain from including pre-hiring requirements in PERM applications if the minimum requirement for the job opportunity is a Bachelor’s degree in a technical field with no work experience or special skills requirement.