Using "On-the-Job" Experience in PERM Labor Certifications
The PERM labor certification application must state the sponsoring
employer's minimum educational and/or experience requirements for the
offered position. Thus, complications arise if the foreign national
beneficiary gained all or a part of the required experience for the position
while employed by the green card (GC) sponsoring employer. For the benefit
of MurthyDotCom and MurthyBulletin readers, we take this
opportunity to explain these matters and the occasions when it may be
possible to obtain PERM labor approval, based upon experience gained with a
DOL's Concerns with "On-the-Job" Experience
As stated above, the U.S. employer must include in the PERM labor the
education and/or 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), therefore,
is skeptical of the accuracy of the stated minimum requirements if these
exceed the qualifications possessed by the sponsored foreign national
employee when s/he was initially hired by the employer.
For example, Mr. Gupta is hired with a bachelor's degree and three years of
relevant experience. Two years later, Mr. Gupta has a bachelor's degree and
five years of experience. The employer may like Mr. Gupta and think that he
does a better job now that he has the extra two years of experience. The
employer, if seeking to fill Mr. Gupta's position, might prefer to have
someone with five, rather than three, years of prior work experience.
However, the DOL 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 for Mr. Gupta's
position, which states that the requirements for this particular job are a
bachelor's degree plus five years of experience.
It is worth noting here that, although the GC-sponsoring employer may
consider the position with the company as already filled by Mr. Gupta, in
this example, the DOL views that Mr. Gupta's job is temporary. Mr. Gupta is
allowed to work in the United States temporarily based on the H1B or L-1 or
other employment authorization. There must be a test of the U.S. labor
market for the permanent position to be filled by the U.S. employer, to
ensure that there are no able and willing U.S. workers who are minimally
qualified and can perform the job of Mr. Gupta adequately.
Promoting from Within: What if the Job is
Companies often promote from within their organizations. It, therefore, may
be that Mr. Gupta, in our example, did such a good job during his initial
two years that he was promoted to a new position in the company. Or, as
often happens, particularly in smaller to mid-sized companies, Mr. Gupta may
have just taken on additional tasks and a higher level of responsibility,
without an official promotion or title change.
If Mr. Gupta is being offered a different job in the company, one other than
the position in which he gained the experience, then maybe the DOL will
agree that his new job requires a bachelor's degree plus five years of
experience. But, as explained below, the DOL is not so easily persuaded and
the standards are strict.
More Than 50 Percent of GC-Sponsored Job Must
Involve Different Job Duties
The DOL standard for using experience gained with the sponsoring employer is
that the past position must not be substantially comparable to the new
position described in the PERM labor. The DOL has defined a substantially
comparable job as one that requires the performance of the same job duties
more than 50 percent of the time.
There is an argument that one should be able to use experience gained in a
position that involves the same job duties, provided the percentage of time
spent in those job duties differs by more than 50 percent. However,
generally the DOL does not agree with that interpretation and argument.
Cases taking this approach are at a much greater risk of denial, as of this
Employee Leaves & Later is Rehired
The rules set forth above still apply if the GC-sponsored employee is
rehired after leaving the sponsoring company for a period of time. This
would be the case only if the employee continues to rely upon experience
gained with the sponsoring employer to qualify for the job.
Example 1: Rehired Without Gaining More Experience
Mr. Gupta was hired with a bachelor's degree plus three years of experience.
After working for company A for two years, Mr. Gupta faced a family
emergency and needed to return to India for a year. Mr. Gupta did not work
during his year in India. After the one year, Mr. Gupta was rehired by
company A, because he had maintained a good relationship with them and was a
hard worker. If company A sponsors Mr. Gupta's PERM labor and lists a
bachelor's plus five years of experience as a job requirement, the company
will still have to establish that the new job is not substantially
comparable to the job in which he gained the experience with company A.
Example 2: Rehired After Gaining More Experience
Mr. Gupta is hired by company A with a bachelor's degree and three years of
experience. After working for company A for two years, Mr. Gupta is hired by
company B. Mr. Gupta works for company B for two years, but company B will
not file a PERM labor for Mr. Gupta. Since Mr. Gupta maintained a good
relationship with company A, and was a very hard worker with some
hard-to-find-skills, company A agreed to re-hire him and sponsor his GC
Mr. Gupta is offered a new job that requires a bachelor's plus five years of
experience. However, Mr. Gupta now has five years of experience gained
outside of company A. Thus, he can meet the requirements for the new job
without using his experience with company A. In this situation, the employer
will have to show that the new position is different from Mr. Gupta's first
job with the company (since that job can be performed with only three years
of experience). However, company A will not have to show that the new job
meets the requirement of being more than 50 percent different. It may be
enough to have a more routine promotion to a job with additional
responsibilities, but without more than 50 percent different job duties.
How to Establish More Than 50 Percent Difference
in Job Duties
The DOL wants to see a comparison of the job duties of both the job in which
the experience was gained and the newly-offered position described in the
PERM LC. This comparison should include the percentage of time devoted to
each job duty. Additionally, the DOL will want to see an organizational
chart, to identify where the positions fit within the company's various
divisions and where the jobs fit in comparison to each other. The DOL also
expects to review the company's payroll records, which, in many cases, will
reflect raises appropriate for job promotions.
What are the Best Types of Cases?
The best chances of success in cases of this type involve a material change
in the nature of the position, and, for H1B workers thus would require
amending the H1B petition to reflect the change. Other, typically more
successful cases involve changes from initial, lower-level positions, moving
up the ladder into managerial roles or changing from one job family group of
similar occupations to another and being promoted.
Each case needs to be reviewed carefully, based upon the particular facts of
the job duties and the sponsoring employer. If the employer asserts that
there has been a significant change in the individual's role in the case of
an H1B worker, the H1B petition should reflect those changes, typically with
the filing of an amended H1B petition. Additionally, employers must always
be prepared to justify the need for the required experience as being a
necessity for the particular business, if the stated job requirements exceed
the DOL's expectations as set out in the O*Net Job Zone for the particular
Conclusion: Risky, but Sometimes Possible
Using on-the-job experience in a PERM labor case
significantly increases the risk of a DOL audit and decreases one's chances
of approval. It should not always be ruled out, however. Some companies
strongly favor promoting from within. Many people find their long-term
career paths with a particular employer and move up through several
promotions or other job changes. It is unfortunate that restrictions on the
use of experience with the sponsoring employer influences some people to
change employers, when they otherwise would not do so. At the Murthy Law
Firm, we can work with complex PERM labor issues,
including cases in which candidates may need to use on-the-job experience to
qualify for particular positions. While challenging and more risky, it is
possible, when appropriate, to use experience gained with the sponsoring
This article originally appeared in Murthy Bulletin on www.Murthy.com.
Reprinted with permission
About The Author
Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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