April 15, 2010, BALCA affirmed the CO's denial of an employer's application for PERM under Section 212 (a)(5)(A) of the Immigration and Nationality Act and the PERM regulations under 20 C.F.R. § 656.
The petitioning employer filed the PERM application for the position of "Senior Software Engineer," for which the employer required a qualification equivalent to 5 years of Specific Vocational Preparation (SVP). However, the SVP level assigned to the position is "7.0<8.0," where level 7.0 is equivalent to "over 2 years up to and including 4 years" of SVP and level 8.0 is equivalent to "over 4 years up to and including 10 years" of SVP. Regulations under 20 C.F.R. § 656.17(h)(1) state that an employer's requirements for a PERM position must not exceed the SVP level assigned to the occupation. If this condition is not satisfied, the employer must establish "business necessity" by showing that the non-conforming job requirements are essential to performing the job in a reasonable manner. The petitioning employer argued that an SVP level of "7.0 < 8.0" represents a continuum of level 7 up to and including level 8. The petitioning employer also provided internet advertisements for similar jobs, which required the same qualification as the employer did, to demonstrate business necessity.
Affirming the certifying officer's denial of the employer's PERM application, BALCA held that an SVP level of "7.0 < 8.0" covers anywhere from two years of SVP up to and including four years of SVP, i.e. the same range as level 7.0 but without any overlap with level 8.0. BALCA also held that the petitioning employer failed to show the relevance of internet advertisements to business necessity, as no explanation was offered for how requirements of other employers bear a reasonable relationship to the occupation in the petitioning employer's PERM application.