One of the requirements of the PERM labor certification is for the employer to include experience or relevant education necessary to carry out the job. The U.S. Department of Labor takes this very seriously and puts measures in place to ensure the position is not displacing a domestic worker. Sometimes, the foreign work obtains a part of all of their experience for the job while they are working for the green card sponsoring employer. How does the DOL respond to that? Keep reading to find out!
How the Department of Labor Views On-the-Job Experience
Let’s use an example to highlight this particular situation. Prateek Jamal is hired by Company X with a bachelor’s degree in computer science and four years of work experience. Three years later, Prateek now has a computer science degree and seven years of on-the-job experience. Company X acknowledges how great of an employee he is and now they raise their standards so when they go to fill his job, they now want someone with more than three years of experience. From the Department of Labor’s viewpoint, they are not interested in what the most ideal candidate looks like, only the minimum required experience for a person to carry out the job so they would be concerned if the new requirements for Prateek’s job were now seven years of job experience plus a bachelor’s degree. When the DOL is analyzing the green card sponsoring employer, they view Prateek’s job as temporary in nature so even though he may be filling the need for Company X, the company must still test the domestic labor market to fill the position by a U.S. worker first, who meet the minimum job qualifications (not necessarily the ideal criteria, like Prateek now possesses).
One way companies bypass this is by promoting from within to a higher level position. Say for example, Prateek is now promoted to a higher-up position, takes on additional responsibilities and also requires the experience he has gained, then the DOL would be more willing to accept this. There is a rule, however. The green card-sponsored job must involve more than 50% different job responsibilities, meaning it must not be substantially comparable to the new position. Consult with your immigration attorney to ensure the job and the candidate meet the DOL requirements.
Does this rule still apply if the green card sponsored employee leaves the company and then is later rehired?
Yes, it still applies if the foreign employee must still rely on work experience gained with the company in order to meet the qualifications for the job.
So for example, Prateek was hired with his computer science degree and four years of experience but needed to return to his home country after working for Company X for two years (and did not gain any more experience while gone) and then is rehired by Company X and the PERM labor has the requirements as six years of experience plus a bachelors degree, the company is still responsible to prove that the position he is rehired for is not comparable to the job he worked at before leaving the country.
What if Prateek gained more experience while he was gone from Company X?
Let’s say after working for Company X, he gets hired by Company Z and works there for one year but they do not file a PERM labor for him. He decides to go back to work for Company X at this point and they sponsor his green card case. Prateek can now use that one year of experience from Company Z to apply towards the requirements of the new position with Company X. They will need to demonstrate that the new position is different from his last position but they do not need to meet the requirement of being 50% different if the new job has enough additional responsibilities. Note that the DOL will require a comparison of these different responsibilities and the experience Prateek gained in relation to other positions within the company (organizational chart). Expect the DOL to inquire about payroll records as well.
We often see approvals in cases where the employee moves up from lower-level jobs to upper managerial positions.
PERM Labor Certification Requirements
In order to qualify to begin the PERM process, the following requirements must first be met:
- You must have an existing permanent job offer by a U.S. employer.
- The offered wages are required to be equal or above the DOL prevailing wage. DOL will subject this to the specific position.
- The local job market has been analyzed for qualified candidates. This is required to provide evidence that U.S. workers are unable to complete the requirements of the position, meaning that no qualified native workers are available for the position. Supplementary documentation relating to recruiting efforts must be made available if requested.
- The U.S. employer is obligated to construct and maintain an audit file with additional proof of attempts at recruitment
How VisaNation Law Group’s Immigration Lawyers Can Help:
Have questions related to PERM labor experience and approval? VisaNation Law Group’s immigration lawyers are capable of assisting you with the required documentation to meet the critical PERM Labor Certification deadlines. If the applicant receives an audit request from the Department of Labor, their immigration lawyers will prepare and submit an appropriate and timely response to the request with the required documentation. Fill out this contact form to schedule a consultation today.