Many PERM problems are not “candidate problems.” They’re position-description problems. If the job requirements read as unusual, tailored to one person, or inconsistent across the PERM chain (PWD → recruitment → ETA-9089), the case becomes a prime target for audit and denial: “unduly restrictive requirements,” “minimum requirements not established,” or “no business necessity.”
DOL’s core lens: requirements must be normal for the occupation or the employer must show why the requirement is necessary in the employer’s business context and essential to perform the job in a reasonable manner.
Quick facts (why cases get flagged)
- “Normality” expectation: requirements should match what’s customary for the occupation; if they exceed the norm, be ready to justify business necessity.
- Recruitment must mirror ETA-9089: ads and the job order cannot be wider/narrower than the final filing. Small mismatches often become big issues.
- The most expensive mistake: writing requirements that look “crafted” around the beneficiary (especially via alternate requirements or a disguised pseudo-minimum).
- Business necessity is not “we prefer it”: it’s a structured explanation of why the requirement is tied to the role and why the job can’t be done reasonably without it.
- Certain “narrow” requirements are magnets: foreign language, blended roles, niche tech stacks, unusual schedules/on-call/travel, hybrid/remote geography.
Additional information
PERM process overview: How to Navigate the PERM Labor Certification Process
ETA-9089 breakdown: Understanding Form ETA-9089
Remote/hybrid alignment: PERM for Remote/Hybrid & Multi-Location
What this guide focuses on
Not generic PERM steps, but the “failure mode” that HR teams see in real life: how duties and requirements wording creates an “unduly restrictive” appearance, how alternate requirements backfire, how business-necessity memos should be structured, and how to pre-audit the job description before recruiting.
Business necessity memo: what makes it credible (and what reads like a preference)
A strong business-necessity memo is not a long narrative. It’s a reasoning chain: duties → real constraints → why the requirement matters → why reasonable alternatives don’t work. If any link is missing, the requirement can look “unduly restrictive.”
Evidence that usually strengthens a memo
- Contracts / SOW / SLAs that explicitly demand language, certifications, clearance, time windows, on-call, travel boundaries, or domain expertise.
- Compliance / security requirements (audit trails, regulated data, access controls, mandatory policies).
- Operational design: how errors or delays create outsized business risk (safety, money, uptime, legal exposure).
- Training reality: documented complexity and why “we’ll train later” is not reasonable for this role.
- Market norms (carefully): comparable postings for similar roles in similar environments—used as support, not copied.
Common weak patterns (rewrite them)
- “We’re a small company, so everyone does everything.” → map duties into one occupation; clarify scope and why it’s not two jobs in one.
- “Our system is unique.” → specify what is unique and why general experience does not transfer quickly.
- “We need 10+ years to be confident.” → replace “confidence” with concrete risk and responsibility.
Related (USCIS stage): I-140 “Ability to Pay” and How to respond to an RFE.
Interactive: “Requirement Risk Checker” (pre-audit your job requirements)
Check items that apply. The tool estimates how “audit-magnetic” the requirements look and shows what to tighten or document. It does not pull any external data and does not submit anything.
Where this fits in your overall EB case
PERM is a DOL process; then the employer typically files Form I-140. If you’re choosing between AOS and consular processing, see Consular Processing vs. Adjustment of Status (I-485).
“Unduly restrictive requirements”: what triggers the label (and why alternate requirements are risky)
“Unduly restrictive” is less about one single requirement and more about the overall impression: does the job opportunity look like a normal market role, described consistently and recruitable in good faith, or does it look engineered (too narrow, internally inconsistent, or broader/narrower depending on the document)?
Patterns that commonly trigger scrutiny
- Over-specific combos: a narrow set of tools + a narrow domain + an extra constraint (language, travel, on-call) that together eliminate normal applicants.
- Blended roles: duties that read like two SOC roles “merged,” especially when both are senior-level.
- Foreign language as a must-have without objective business support.
- “Requirements creep”: ads/job order mention less than ETA-9089, or vice versa.
- Alternate requirements that conveniently match the beneficiary’s background and no one else’s.
Alternate requirements: the “Kellogg-shaped” problem HR teams stumble into
Alternate requirements (A or B) are not automatically forbidden, but they are frequently where cases start to look tailored. The risk increases when one alternative is highly specific, unusual, or effectively requires “experience in the job offered” disguised as something else.
- Bad look: “Bachelor’s + 5 years” or “Master’s + 2 years with exactly these niche tools in exactly this niche domain.”
- Bad look: “Any STEM degree” or “Degree X + experience that mirrors the beneficiary’s prior employer stack.”
- Better look: one clear minimum that is truly the minimum; if alternatives are used, keep them truly comparable and explain why both paths prepare someone for the same duties.
How to keep requirements defensible
- Tie each must-have to a duty (not to “preference” or “nice to have”). If you can’t tie it, it probably shouldn’t be a minimum requirement.
- Keep the PERM chain identical on the “must” items: PWD narrative, recruitment text, and ETA-9089 should not drift.
- Document why training is not reasonable when you insist on a narrow skill (risk, compliance, production environment, timelines).
- Use plain language and avoid “kitchen sink” listings that look like a wish list.
If location/remote details are involved, pre-audit against: PERM for Remote/Hybrid & Multi-Location.
A practical “consistency test” you can run internally
Take your draft ETA-9089 text and check these items side-by-side (copy/paste into one page):
- Duties: same core duties everywhere (no role “inflation” after recruitment).
- Requirements: every “must” appears everywhere; no “missing must” in ads.
- Worksite: location/hybrid wording is identical and logically consistent.
- Schedule/travel/on-call: either consistently included or consistently omitted.
Rewrite clinic: make requirements defensible without making the job “too soft”
The goal is not to “lower the bar.” The goal is to state true minimums and keep them tied to duties. If a requirement is genuinely needed, you can keep it—just be ready to explain why it’s essential and how it connects to the job.
Example 1 — language requirement (weak phrasing)
Requirement: “Fluent in Spanish required.”
Problem: reads like preference or convenience unless tied to objective business need and demonstrated frequency/materiality.
Example 1 — language requirement (stronger structure)
Duties tie-in: “Role includes daily customer onboarding and support for Spanish-speaking accounts; accurate real-time communication is essential for delivery and compliance.”
Business necessity packet idea: service scope, account breakdown, support logs/process docs, contract language, QA/compliance requirements.
Example 2 — blended duties (weak phrasing)
Duties: “Own product strategy, lead engineering, manage infrastructure, run security audits, and do sales demos.”
Problem: looks like multiple occupations. Even if real in startups, the description needs discipline: define the primary occupation and keep “adjacent” tasks bounded.
Example 2 — blended duties (cleaner framing)
Rewrite approach: “Primary occupation: Software Engineer (or Product Manager). Core duties: A, B, C. Adjacent tasks: limited in scope, clearly supporting the core duties (e.g., ‘participate in security reviews’ vs ‘run audits’).”
Business necessity angle: why the organization’s structure requires a broader scope and why this is still one role in practice.
Employer checklist (before recruiting)
- Minimums test: would you hire a qualified U.S. worker who meets exactly these requirements (no more)? If not, they’re not true minimums.
- One-sentence tie: for each “must,” write one sentence: “This is needed because duty X requires it in context Y.” If you can’t write it, reconsider the “must.”
- Consistency test: confirm the exact same must-haves appear in PWD narrative, ads/job order, NOF, and ETA-9089.
- Alternate requirements: if you use them, ensure both paths are genuinely comparable and not a beneficiary-shaped “escape hatch.”
- Remote/hybrid: align geography language everywhere (don’t mix “anywhere in the U.S.” with a single worksite unless your strategy supports it).
If your case touches job continuity or employer changes after filing, see: Employer “went under”: what happens to PERM, I-140, I-485, and Priority Date.
Primary sources
Below are the core “source layers” practitioners rely on when discussing business necessity and unduly restrictive requirements in PERM: (1) the regulation, and (2) DOL’s BALCA reference materials that summarize how standards are applied in practice.
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20 CFR § 656.17 (eCFR) — the PERM regulation text. This is where the business-necessity standard is stated and where core recruitment/consistency requirements live.
Open eCFR § 656.17 -
DOL OALJ BALCA Benchbook — a curated reference that organizes BALCA reasoning by topic (including business necessity and restrictive requirements) and points to representative decisions.
Open Benchbook (Chapter 32) -
BALCA En Banc Summaries — Unduly Restrictive Job Requirements — DOL’s topic page summarizing how “unduly restrictive” issues are analyzed in BALCA en banc summaries.
Open the summaries page -
BALCA PERM Digest — a digest-format reference with short case notes on common PERM issues (including business necessity and language requirements).
Open BALCA PERM Digest
Related reading on the site (English)
Disclaimer: This material is for general educational purposes only and does not constitute legal advice. PERM cases are highly fact-specific; small wording changes can change the analysis. For advice on your specific situation, consult a qualified immigration attorney.
