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ILW.COM Bloggings On May 3, 2010

by Joel Stewart, Greg Siskind, Christopher T. Musillo and Matthew Kolken

By Joel Stewart

Unauthorized or Unpaid Employment for PERM!

I received a two-part question regarding alien qualifications fora PERM and employment based immigrant visa petitions:

1. Can unpaid employment "count" for experience for a labor certification application?

Aliens and U.S. workers can qualify for a job by any combination of work, experience and training. Although an employer may specify a diploma, years of experience or proof of training, if the applicant could perform the job duties on the basis of a combination of work, experience and training, then it should not matter which combination preparation the worker possessed.  

Generally, there are forms of unpaid work which fall into the description "any combination of work, experience and training." It can not be said that work cannot be voluntary. Thus, unpaid work may be volunteer work, if properly documented, or, if you like, volunteer work may be a form of training.For example, a person who worked voluntarily for a church or charity, or who worked without pay as part of an educational course, such as a college or university which rotates students through coursework and on-the-job experience or training! It all depends how you define the terms you are using. The DOL has not provided extensive guidance on the definition of training. Although it clearly applies to apprenticeship, there are many other traditional and common-sense interpretations of the word.

Keep in mind, however, that although unpaid employment may be used for an alien to qualify for an I-140 immigrant petition, it may not serve to qualify the alien for an I-360 religious worker petition.  The regulations for an I-360 religious worker are recent, and they require the alien to prove that he or she have worked for remuneration, not voluntarily, for at least two years in a religious position. Otherwise, anyone who goes to church and participates in the service could be considered qualified as a religious worker.

2. Can unauthorized employment "count" for experience for a labor certification application?

Any employment or any combination of education, experience or training that qualifies the alien or US worker is sufficient to prove that the worker is qualified. The DHS requires that the requirement be spelled out on the PERM Form, so if the job requires education, and/or experience, and/or training, these have to be listed as separate items, and documentation of the alien's qualifications has to match the requirements specifically set forth.

The agencies have two different standards. DOL uses a broader standard, i.e., the inquiry is whether the worker is qualified by any combination of experience, education or training. And the DHS uses a narrow standard, does the alien possess the qualifications as specifically and literally stated on the PERM form. For this reason, many petitions are denied at the DHS, because the loose statement of minimum requirements passed muster at DOL but not at DHS. A perfect example that comes to mind is a "bachelor's degree or equivalent." At DOL, this works very well, but at DHS it can not be used to mean an equivalent combination of education, experience and training.

Since the focus is on the qualifications of the alien, and the requirements listed on the PERM Form, it is not legally relevant whether the alien gained qualifications (experience, education or training!) while in status, Experience, education or training is the key, not the persón's status in the U.S.