An application for Labor Certification, also known as PERM (Program Electronic Review Management) is the first step an employer must complete when wishing to sponsor a foreign national employee for permanent resident status. The PERM application is filed with the Department of Labor (DOL) to show that there are no “qualified, willing, able and available US workers” for the position the beneficiary is intended to fill. To show this, the employer must, in good faith, test the labor market by performing various recruitment efforts.

Prior to starting this recruitment process, however, the employer must determine the actual minimum requirements for the position. The requirements should be the bare minimum required to perform the job. For the beneficiary to qualify for the position being advertised, the beneficiary must meet the education and/or experience requirements set forth by the employer.

When determining if the beneficiary meets the actual minimum requirements of the position, DOL generally does not allow using experience gained with the sponsoring employer. PERM regulations state  the employer must not require a U.S. worker to have more experience than what is required of the beneficiary. DOL may be skeptical on what the actual minimum requirements truly are if the beneficiary was previously hired before possessing the education and/or experience necessary for the position.

Example: If the PERM position requires a Bachelor’s degree and two years of experience, the beneficiary should have obtained a Bachelor’s degree and two years of experience prior to being hired by the sponsoring employer. If the beneficiary needs to use the two years of experience working for the sponsoring employer to qualify, the DOL may question whether the actual minimum requirements for the position are a Bachelor’s degree and two years of experience or a Bachelor’s degree and NO experience since the sponsoring employer hired the beneficiary when they had no previous work experience. The sponsoring employer cannot demand more experience of U.S. workers than compared to the beneficiary.

An ideal situation would be where the beneficiary is able to use experience gained before joining the sponsoring employer to qualify for the PERM position. However, many times this is not possible. There is an exception to the general rule that disallows the use of experience gained with the sponsoring employer. Experience gained with the sponsoring employer can be used if it can be clearly shown that the beneficiary will be sponsored for a position that is “not substantially comparable” to the position in which the experience was gained.

A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. In other words, to not be considered a “substantially comparable” position, the PERM position must be more than 50% different from the position in which the experience was gained. Simply put, the two positions must be more than 50% different.

The two positions must be distinctly different in job duties and responsibilities and should have different job titles to distinguish the positions clearly. The employer must be able to demonstrate that the beneficiary will be required to spend half or more of their time performing duties that are different from the duties they are currently performing.

Example: The beneficiary is a Software Developer and has only worked for the sponsoring employer. They spend 100% of their typical work day designing and developing software. The beneficiary is then promoted to the position of an IT Project Manager. As an IT Project Manager the beneficiary now spends the majority of their typical work day (over 50%) performing managerial tasks. For the remainder of their day (less than 50%), the beneficiary designs and develops software. The employer wishes to sponsor the beneficiary for the IT Project Manager position. The beneficiary should be able to use the experience gained as a Software Developer to qualify for the IT Project Manager position as the two positions are not “substantially comparable” as the job duties involved are more than 50% different.

While both positions are both essentially in the software engineering industry, it should be clear that the IT Project Manager position differs significantly from the Software Developer position due to the higher responsibilities and distinct job duties. An overlap may exist between the two positions, but as long as the overlap remains less than 50% of the job duties, the prior experience may be used to qualify the beneficiary for the IT Project Manager position.

The best types of cases involve material changes in the positions such as moving from an initial entry or lower-level position to a more managerial or senior position. It is important to note that each case must be carefully reviewed on a case by case basis with the underlying facts and circumstances. While there is an increase in the complexity of these types of PERM cases, all is not lost when a beneficiary must use experience gained with the sponsoring employer to qualify for the PERM position. Before starting, to be certain DOL standards are being met, it is best to discuss the particular situation with a qualified and experienced attorney to help streamline the PERM process.

For over 25 years, Reddy Neumann Brown PC has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy Neumann Brown PC’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.