Can I Use Experience Acquired with Sponsoring Employer to qualify for PERM Application, PERM, PERM application, PERM Experience, Sponsoring Employer, PERM qualify, PERM Application

Home | William's Answers for Immigration and Visa Questions

Can I Use Experience Acquired with
Sponsoring Employer to qualify for PERM Application?

Hi William,

May employer will file PERM labor certification application for me soon. I have received extensive experience in the employer's systems and applications. Can we include my current extensive experience in the minimum educational and experience requirements for the offered position in PERM application?

Answer,

Generally, experience gained within the sponsoring company for a PERM labor certification application cannot be used to meet the position's minimum requirements. However, there are exceptions, such as when the beneficiary had a significantly different job within the same company before their current position, or if the employer can demonstrate it's no longer feasible to train a U.S. worker for the position.

The PERM labor certification application must state the sponsoring employer’s minimum educational and experience requirements for the offered position. It may be a poblem if the alien beneficiary gained all or a part of the required experience for the position (On-the-Job experience) while employed by the green card sponsoring employer.

For the PERM labor certification, the U.S. employer must include the education and experience necessary to perform the offered job. This must be limited to the minimum that the employer would have required from any person applying for the job. The U.S. Department of Labor (DOL) is skeptical of the accuracy of the stated minimum requirements, if these exceed the qualifications possessed by the sponsored alien employee when he or she was initially hired by the employer.

For example, if an alien employee is hired with a bachelor’s degree and three years of relevant experience. Two years later, the alien has a bachelor’s degree and five years of experience. The employer may like the alien employee, and think that he does a better job now that he has the extra two years of experience. The employer, if seeking to fill his position, might prefer to have someone with five, rather than three, years of prior work experience.

But U.S. Department of Labor is only interested in the minimum requirements for a person to do the job, not the requirements for the ideal candidate. Thus, the DOL will be skeptical if the employer files a PERM labor certification application for the position, which states that the requirements for this particular job are a bachelor’s degree plus five years of experience. Therefore, using on-the-job experience in a PERM labor certification application may increase the risk of a DOL audit and decreases one’s chances of approval. The restrictions on the use of experience with the sponsoring employer influences some people to change employers, when they otherwise would not do so.

The more considerations of this issue include:

1) General Rule: The U.S. Department of Labor (DOL) typically disallows using experience acquired with the sponsoring employer to qualify for a PERM position.

2) "Substantially Comparable" Positions: If the beneficiary's previous role within the same company was considered "substantially comparable" to the PERM-sponsored position, meaning they performed the same duties more than 50% of the time, the experience gained in that role may not be used.

3) Infeasibility to Train: An employer can argue that it is infeasible to train a U.S. worker for the position in the same way the beneficiary was trained. This requires a detailed explanation from the employer, not just a statement of economic hardship.

4) Job A/Job B Scenario: If the beneficiary's current role is substantially different from their previous role within the same company, the experience gained in the earlier position might be considered.