Obtaining an Approved PERM Application Using Training/Experience Gained After Joining the Sponsoring Employer: Infeasibility to Train Exception
PERM Labor Certification is often the first step of the employment based green card process. Employers sponsoring a beneficiary under PERM must first conduct certain recruitment efforts to test the U.S. labor market for able, willing, minimally qualified, and available U.S. workers. Employers are required to test the U.S. labor market under the most favorable conditions for U.S. workers. Therefore, employers must only include their actual minimum requirements for the job opportunity. This ensures that the stated requirements do not exceed the beneficiary’s qualifications at the time of hire.
Due to these limitations, an employer cannot require U.S. worker applicants to possess training and/or experience beyond what the beneficiary possessed at the time of hire unless:
(i) The foreign national gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or
(ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
Infeasibility to Train
What happens if an employer now requires more training or experience than what was initially required of the beneficiary? Shouldn’t the employer be able to use the extensive experience and training provided to the beneficiary over time? What if the employer can no longer train a U.S. worker to perform the job? This is where the infeasibility to train exception may apply.
Training or experience gained with the sponsoring employer in a position substantially comparable to the sponsored position may be used by the beneficiary to qualify if the employer can adequately demonstrate that it is no longer feasible to train a worker to perform the role. The employer carries the burden to prove why it is infeasible to provide U.S. workers with the same favorable training opportunity given to the beneficiary. Although the employer has a heavy burden to meet, it is certainly possible as we see below.
Matter of Kentrox, Inc.
In Matter of Kentrox, Inc., 212-PER-00038 (May 22, 2014), the Board of Alien Labor Certification Appeals (BALCA) discussed infeasibility to train and found that where the employee gained the required experience while working for the employer, the employer’s detailed statement sufficiently documented that it was no longer feasible to train a worker for the position.
In this case, the employer sponsored the beneficiary for a Software Engineer position, requiring a Master’s degree and 2 years of related experience. However, the beneficiary did not possess 2 years of qualifying experience prior to joining the sponsoring employer. Instead, the beneficiary gained 2 years of experience as a Software Engineer with the sponsoring employer.
In order to prove infeasibility to train a new worker, the employer provided a detailed letter from its Vice-President of Engineering (VP). The VP explained that the company was in the middle of a “critical product maturation phase” for the next 3 years and would be releasing new software updates and releases every 6-9 months. The VP also provided a detailed explanation of how critical the beneficiary’s contributions to the product were.
Finally, the VP thoroughly explained that if the company was to hire a U.S. worker with just a Master’s degree and no experience, the software development phase would stall and it would take 2 years to catch up to the current stage of the product.
On Appeal, BALCA explained that the employer’s burden of proof for infeasibility to train was high. Taking this into consideration, the Board still found that the employer made a credible presentation for the need to keep the beneficiary on permanently. Further, although direct documentation was not provided, BALCA found that the VP was clearly “intimately knowledgeable” about the company’s products and business needs. BALCA agreed that the employer provided specific examples regarding (1) the beneficiary’s invaluable knowledge of the product and (2) why U.S. workers could not timely acquire the skills needed for this role. Based on the foregoing, BALCA ordered that the labor certification be approved.
A more recent example of infeasibility to train comes from Sara’s Garden, 2018-PER-00022 (Mar. 31, 2022). In this case, the employer sponsored the beneficiary for the position of Special Education Conductor. The employer required a valid Ohio Resident Educator License, but the beneficiary was not issued the license until 3 years after being hired by the employer. Further, the only employment listed on the PERM application was the beneficiary’s employment with the employer in the same position as the sponsored role. The Certifying Officer denied certification stating that because the beneficiary did not meet the license requirement at the time of hire, the requirements listed did not represent the employer’s actual minimum requirements for the job opportunity.
The employer explained that the license only became a requirement when the employer changed its business structure to operate as a “multi-disciplinary health and education organization with a non-public K-12 charter school.” This change in business structure occurred after the beneficiary was hired; the employer explained that the beneficiary met all the requirements of the job opportunity at the time of hire as there were no license requirements at that time. The employer also noted that the beneficiary obtained the license before the reorganization as a private charter school was complete and that it was currently required to ensure all teachers, including the beneficiary, possessed the required license. Importantly, the employer extensively documented its assertions that the change in business structure to operate as a charter school now subjected the employer to state licensing requirements.
On appeal, BALCA explained that at the time the PERM application was filed on behalf of the beneficiary, hiring an individual without the required license was no longer legally possible as it was when the beneficiary was initially hired. BALCA noted that based on the significant change in business structure, the beneficiary was required to obtain the license before the reorganization was complete. Therefore, BALCA agreed that the change in business structure fundamentally altered the qualifications needed to perform the job and thus supported the infeasibility to train exception. Based on the foregoing, BALCA ordered that the labor certification be approved.
The infeasibility to train exception is rarely used by employers and can be difficult to prove. Employers should remember that a simple statement of inefficiency or economic hardship will not suffice. A written statement by someone very knowledgeable about the company and its goals/products along with supporting documentation is always beneficial when presenting an infeasibility to train argument.
Krystal Alanis is a Partner at Reddy & Neumann P.C. She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.