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Bloggings on PERM Labor Certification

by Joel Stewart

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

Experience Gained on the Job!

One question that has become critical is the possibility to use experience gained on the job, especially with applications directed toward 2nd preference. You will recall that the requirement for 2nd preference is an advanced degree, i.e., a master's degree or a bachelor's plus five years of progressive experience. Since many aliens are in non-immigrant status based on an F-1 visa, practical trainingl or other kind of short-term work visa, they may have accumulated less than five years of experience, or if they have the experience, it might have been gained with the same employer.

It is clear under the regulations that the applicants must prove that they had all the minimum requirements for the job BEFORE starting to work for the employer. Otherwise, if the employer trained the alien, the employer should be willing to train an American worker. To put it in plain English, the Employer would have to lower his requirements to include less experience or no experience at all, if the alien had gained that experience with the same Employer.

I refer now to an article written by Gary Endleman on this issue. The article appears in the PERM Book, where you can consult it in its entirety. Mr. Endleman wrote the following:

"The two main ways to evaluate any job applicant are education and experience. How can we make these work for us? Leaving education aside for the moment, let us turn to experience and see what happens. There are, as we all know, two kinds of experience: experience in the job that is being put forward for certification and experience in a related occupation or field. The former type of experience, colloquially known to practitioners as "in-job" experience, is the best kind for two simple but powerful reasons: First, it narrows the universe of potentially qualified applicants. Second, it comes closest to what the employer really needs. Anything that makes sense in the real world outside of labor certification while also providing an immigration benefit cannot be bad! So, how can we create eligibility for this big benefit? That is where the lawyer has a chance to be creative.

Most lawyers, particularly those who have not done this for a long time, will tell you that in-job experience is rarely attainable; they would like to try it but their client just doesn't have it! Not so. This reflects, at bottom, a failure to probe into the mind of the employer. Most employers, particularly large companies, do not think in terms of fixed job descriptions, particularly those that do not change. They do not hire for specific projects or sharply defined jobs with rigid duties cast in stone. Indeed, they may not even know what jobs their employees are going to do when they hire them! This is not hard to understand. The one constant in business is change and the one desire of all employers is to be able to adapt to such change in real time. That is why employers do not think in terms of precise jobs but, rather, in terms of core skill sets that can be deployed strategically on any number of jobs depending upon the commercial needs of the moment. DOL has never understood this. That is why labor certification has never worked since the mental model that DOL uses is directly at odds with how business in America operates. It is the constancy of change, not its utter absence that any lawyer must keep in mind when considering whether their client has "in-job" experience with a former employer.

Resist the temptation to focus on the minutiae of the job that your client does today. For one thing, that may not be the same job that he or she is doing in the future when the green card comes through. This laser-like focus on the present can make one sightless among miracles, oblivious to the strategic possibilities all around us. Take a long step back, draw a deep breadth and slowly exhale, and cast aside all of the verbiage that your client assures you is absolutely vital. Now, you are ready to do the real work of a lawyer. The key is not to think in terms of job descriptions, an artificial construct that exists only in the inner sanctum of 20 CFR 656, but, rather, in terms of core skills and responsibilities that, far more than you might think, carry on from one job to another, regardless of employer. When you adopt this new mental model, the prospects for realizing "in-job" experience increase dramatically. This is not surprising. It happens not because you are so clever, or because you are trying to pull the wool over DOL's eyes. Rather, the pre-condition for being able to imagine and then capture "in-job" experience comes because you are now thinking of the alien and his deployment precisely as his/her employer does.

Labor certification benefits when the lawyer realizes that employers hire aliens to make money and want to use them, or change the way they use them, in ways best calculated to achieve this central objective. Start with what the alien knows or does best and then build a job description around this core that allows it to breathe and grow. If there are certain technologies that are inextricably intertwined with creating the culture within which such primal flexibility can flourish, make them a part of this "job description" secure in the knowledge that, whatever your client does, these techniques will be required. This approach to labor certification integrates what DOL will accept with what the employer expects and anticipates the alien's career development in logical and entirely honest patterns.

One more thing. If you can't say it in 7 lines, then you are not ready to file. As the ancient philosopher Cicero once wrote to a friend: "If I had more time, I would have written a shorter letter." Don't let PERM fool you. In-job experience is not beyond your reach. It lives still and is as close to you as it ever was. Happy drafting!"