Most Florida employers approaching PERM for the first time assume the hard part is the paperwork. The forms, the timelines, the recruitment steps. Those things are genuinely complex, but they are not where most cases break down.
The most common reason PERM applications get audited, denied, or sent back for supervised recruitment has nothing to do with a missed deadline or a form filled out incorrectly. It is the job description. Specifically, it is job requirements that look like they were written around one particular person rather than around a genuine business need.
The Department of Labor calls this tailoring, and it is one of the first things a Certifying Officer looks for when reviewing an application. Getting the job requirements right from the beginning is not just about avoiding problems. It is the foundation the entire PERM process sits on. If the requirements do not hold up, neither does anything built on top of them.
What You Need to Know
- What the DOL’s actual minimum requirements standard means and how it is evaluated
- The five most common job requirement mistakes Florida employers make in PERM filings
- When business necessity documentation is required and what it must show
- How foreign language requirements are treated and why they almost always trigger an audit
- Why consistency across the PWD, recruitment ads, and ETA-9089 is non-negotiable
What the DOL Is Actually Looking For
The governing regulation is 20 CFR § 656.17(h), which requires that job requirements be those normally required for the occupation in the United States, unless the employer adequately documents that the requirements arise from a genuine business necessity. Under 20 CFR § 656.17(i), the DOL evaluates whether the requirements on the ETA-9089 represent the employer’s actual minimum requirements for performing the job.
Both standards point to the same underlying question. Would a qualified U.S. worker realistically be able to meet these requirements? If the answer is yes for the vast majority of experienced workers in that field, the requirements are probably fine. If the answer is no, or no except for one specific person, the requirements are going to draw scrutiny.
The DOL’s framework here is not about whether the requirements are reasonable in a business sense. It is about whether they are normal for the occupation and, where they deviate from normal, whether that deviation is supported by documented necessity. An employer can require skills that go beyond the typical job profile, but they have to be able to show why those skills are genuinely necessary for the position as it exists in that specific business.
The Five Mistakes Florida Employers Make Most Often
1. Writing the requirements around the employee
This is the most frequent problem and the one the DOL is most attuned to spotting. When a Florida employer drafts PERM requirements that happen to match their foreign national employee’s resume almost exactly, including a very specific combination of educational background, software tools, years of experience in a niche area, and industry subspecialty, the Certifying Officer reads that as tailoring.
The regulation is explicit. Requirements must reflect what is genuinely needed to perform the job, set independently of who the employer wants to hire. In practice, this means the employer needs to define the job’s minimum requirements before considering how the sponsored employee measures up against them, not after.
If you find yourself adjusting the requirements to make sure your employee qualifies, stop. That adjustment is the problem the DOL is looking for. Define the job, then verify the employee meets it. The order matters.
2. Setting experience requirements that exceed the SVP level
Every occupation in the Standard Occupational Classification system carries a Specific Vocational Preparation (SVP) level, which reflects the typical time needed to become competent in the role. The DOL compares experience requirements on the PERM application against the SVP level for the relevant occupation code.
If the SVP level for an occupation is four years but the employer requires ten, that gap does not automatically disqualify the application. But it does require documented business necessity. Many Florida employers in technology and engineering fields encounter this issue because they are hiring for positions that require more advanced experience than the standard occupation profile reflects. The solution is not to reduce the requirement if the business genuinely needs it. The solution is to document why.
3. Foreign language requirements without business necessity documentation
Foreign language requirements are treated as inherently restrictive under the PERM regulations. 20 CFR § 656.17(h)(3) specifies that job requirements shall not include requirements for a language other than English unless the employer documents that a foreign language requirement is justified by business necessity. An unsupported language requirement will be flagged almost automatically.
Business necessity for a language requirement must be grounded in the actual job duties, not in the composition of the workforce. Saying that many employees speak Spanish is not sufficient. The employer must show that the specific job duties require communication in that language, for example, that the position requires reviewing technical documents available only in that language, managing a team where English is not the working language, or serving a client base where the language is essential to the delivery of the service.
In Florida, where a significant portion of the workforce speaks languages other than English, this issue arises frequently. The existence of a multilingual workforce does not justify a language requirement. The job duties do.
4. Requirements inconsistent across the PERM chain
The job requirements on the ETA-9089 must be consistent with three other documents: the prevailing wage determination, the recruitment advertisements, and the job order posted with the state workforce agency. The DOL compares these documents against each other, and discrepancies are one of the most reliable audit triggers.
Common inconsistencies include ads that describe the position more broadly than the ETA-9089, job orders that omit requirements present in the application, and PWDs obtained for a different position title than what appears on the filing. Even minor differences in how requirements are described across these documents invite questions about whether the recruitment was genuinely testing the market or whether the ad was designed to minimize U.S. applicant responses.
Before filing, every document in the PERM chain should be reviewed side by side for consistency. The substance of the requirements must match across all of them.
5. Alternative requirements that only the sponsored employee meets
Some employers include alternative qualification paths in their PERM applications, stating that the position can be filled by a candidate meeting either a primary set of requirements or an alternative set. Under 20 CFR § 656.17(i)(1)(ii), if the sponsored employee only qualifies through the alternative requirements and not the primary ones, the application will be denied unless it states that any suitable combination of education, training, or experience is acceptable.
The deeper problem is when the alternative requirements are written so narrowly that only the sponsored employee could realistically satisfy them. The DOL and the Board of Alien Labor Certification Appeals (BALCA) have both consistently treated this as a form of tailoring. Alternative requirements must be substantially equivalent to the primary requirements and genuinely open to a range of qualified candidates, not crafted as a second door leading to the same one person.
When Business Necessity Documentation Is Required
The business necessity standard applies any time an employer’s requirements deviate from what is normal for the occupation. The four situations that most frequently require documentation in Florida PERM filings are:
- Experience requirements that exceed the SVP level for the occupation code
- Foreign language requirements of any kind
- Combination occupation requirements, where the position blends duties from two or more distinct occupational categories
- Educational requirements that are higher than the level normally associated with the occupation, such as requiring a master’s degree for a position where a bachelor’s degree is the standard
Documentation must do two things. First, it must show that the requirement is genuinely tied to the job duties as they exist in the employer’s specific business. Second, it must show that the requirement is necessary for the position to be performed in a reasonable manner. A letter from an HR manager describing why the requirement exists is often not sufficient on its own. Supporting evidence such as client contracts, project documentation, organizational charts, or industry standards for similar positions strengthens the case considerably.
Business necessity documentation should be prepared before recruitment begins, not assembled after an audit letter arrives. A contemporaneous record of why the requirement was set, prepared at the time the job was defined, is far more credible to a Certifying Officer than documentation drafted in response to a challenge.
What Happens When Requirements Are Found to Be Unduly Restrictive
If a Certifying Officer determines that job requirements are unduly restrictive and the employer cannot document business necessity, the options are limited. The DOL may deny the application outright. In audit proceedings, the CO is not obligated to allow the employer to simply delete or modify the requirement. The Board of Alien Labor Certification Appeals has consistently held that a CO’s refusal to permit amendment does not constitute reversible error.
That means the practical remedy in most cases is to start over: new prevailing wage determination, new recruitment, new application. For a process that already takes years from start to finish, having to restart because of an avoidable job description problem is one of the most costly mistakes a Florida employer can make in the immigration context.
For a full overview of the PERM process from the prevailing wage request through the I-140 filing, see our PERM for Florida Employers page. For an overview of what PERM costs and who bears those costs, see our post on PERM labor certification costs for Florida employers.
Frequently Asked Questions
Can I use the job requirements from a previous hire for the same position?
You can use a prior job description as a starting point, but it should not be carried over without review. The DOL evaluates whether the requirements represent the actual minimum for the position as it exists at the time of filing. If the role has evolved, or if the prior requirements were set without adequate attention to the normal requirements for the occupation, reusing them transfers the problem rather than solving it. Every PERM filing should have job requirements reviewed from scratch against the relevant SOC occupation profile.
What if a qualified U.S. worker applies but does not meet all of our stated requirements?
If a U.S. applicant does not meet the stated minimum requirements as described in the job offer, they can be rejected for that specific lawful reason. The requirements must be applied consistently to every applicant, including the foreign national being sponsored. If the sponsored employee does not actually meet the stated minimum requirements, the application faces a different and serious problem: the regulations do not allow employers to grant equivalencies or exceptions to their own stated minimums at the PERM stage.
How specific do the job requirements need to be on the ETA-9089?
Very specific. A DOL FAQ document issued in March 2017 implementing 20 CFR § 656.17(i) requires that Section H-14 of the ETA-9089 specify the amount of experience, training, or level of education required for each skill listed. Vague descriptions like ‘proficient in Microsoft Office’ or ‘experience with software development’ are insufficient. The application should specify the number of months or years of experience required in each skill, the level of proficiency, and any relevant subfields or tools. The more precise the requirements, the clearer the record for evaluating whether U.S. applicants legitimately did not qualify.
Does the DOL use O*NET to evaluate whether our requirements are normal?
Yes. O*NET is the primary reference the DOL uses to assess what is typical for a given occupation. Certifying Officers compare the education, experience, and skill requirements on a PERM application against the O*NET profile for the relevant SOC code. Requirements that significantly exceed what O*NET identifies as typical for the occupation will be questioned. This does not mean they will be denied, but it means the employer should be prepared to explain and document why their position genuinely requires more than the occupation norm.
Getting the Requirements Right Before You File Saves Years of Work.
Job description problems are almost entirely preventable. They are also, once they become the basis for a denial or audit, among the hardest things to fix without starting the process over. The time to get this right is before the prevailing wage request goes in, not after the audit letter arrives.
At Lim Krewson, we work with Florida employers on PERM filings from the ground up, including the job requirement analysis that most cases spend the least time on and that the DOL scrutinizes the most. If you are beginning a PERM process or have concerns about requirements in a pending filing, that is exactly the kind of question worth addressing before it becomes a problem.
For more on the full range of employment-based immigration options available to Florida businesses, see our Employment and Business Immigration page.
Serving employers throughout Central Florida, including Orange, Seminole, Osceola, and Brevard Counties.
