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Bloggings: September 19, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

September 17, 2007

Experience before, during and after being hired by the Employer

Question: I'm confused because the regs say that the DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. Let's say you hired someone on a H-1B as a Programmer Analyst without specific software experience, and now you choose to file the Labor Certification for the same position, and you are requiring the skill gained on the job as a  minimum requirement. The alien that you hired on the H-1B while working for you gets certified based on the newly acquired skill. Based on my reading of the regs, he is going to get denied (at least at the I-140 stage) since he didn't have this experience at the time of hiring. If I were the DOL, I would argue that the alien never had such xperience when you initially hired him so why require it now? Now if it is for a different position, maybe a Software Engineer, where you claim the duties are different by more than 50%, then you could require the new skill.

Answer: All requirements must have been completed before the Labor Certification was filed with DOL. It doesn't matter who gave the training or who paid for it. However, when different positions are involved, the situation is different. The alien might have been hired as a Guarde Manger, then studied to be a Chef, and was then hired as a Chef. Here the alien has to prove that he/she was qualified as a Chef before the application for Chef was filed, but not before the alien was hired as Guarde Manger. This is due to the fact that Guarde Manger are two different jobs do not appear to be substantially comparable. The PERM rule states if the alien gained experience while working for the employer, the old and new jobs may not be substantially comparable. The Rule also defines "substantially comparable"  as meaning a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts and payroll records.