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 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 GC-sponsoring employer.

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 Different Now?

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, there have been instances where the DOL has denied cases that used this argument. It is safest to identify job duties in the sponsored position that are clearly at least 50 percent different from those performed in the past.

If 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 case.

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 expectations of the DOL as set out in the O*Net Job Zone for the particular job category.

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 employer.

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