For employers seeking to sponsor a foreign national for U.S. permanent residence through the employment-based green card process, the first step is generally obtaining a labor certification from the U.S. Department of Labor (DOL). Commonly known as PERM (Program Electronic Review Management), the labor certification process requires employers to demonstrate that there are no able, willing, qualified, and available U.S. workers for the offered position and that employing the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

A key part of the PERM process is establishing the position’s actual minimum requirements. This can become particularly complicated when an employer wants to count experience the foreign national gained while working for the same company.

Establishing the Position’s Actual Minimum Requirements

Before beginning recruitment, an employer must determine the position’s actual minimum requirements. These requirements should reflect the minimum qualifications necessary to perform the job, rather than the employer’s preferred or ideal qualifications.

The employer must be able to demonstrate that the requirements are consistent with the position’s actual duties and business needs. The foreign national must also meet the stated minimum requirements by the applicable time of filing the PERM application.

When establishing these requirements, employers should carefully consider the foreign national’s qualifications and employment history, particularly if the individual gained relevant experience while working for the sponsoring employer.

Can Experience Gained with the Sponsoring Employer Be Counted?

Generally, an employer cannot rely on experience the foreign national gained while working for the sponsoring employer to satisfy the PERM position’s experience requirements if the experience was gained in a position that is substantially comparable to the offered position.

This restriction is intended to ensure that the employer’s stated requirements are legitimate and that U.S. workers are not held to requirements that were not actually necessary for the foreign national to perform the job.

For example, suppose an employer seeks to sponsor a Software Developer for a position requiring a bachelor’s degree and two years of experience. However, the foreign national was hired by the employer immediately after graduating from college, without any prior work experience, and subsequently gained two years of experience performing substantially the same job duties.

The DOL may question whether the two-year experience requirement is genuinely necessary if the foreign national was initially hired to perform substantially the same work without that experience. The employer must be prepared to establish that the stated minimum requirements are legitimate and consistent with the position’s actual requirements.

Importantly, the restriction does not mean that all experience gained with the sponsoring employer is automatically disqualified. The nature of the prior position and its relationship to the offered position are critical to the analysis.

The Exception: Experience Gained in a Position That Is Not Substantially Comparable

DOL regulations provide an exception when the foreign national gained the qualifying experience in a position that is not substantially comparable to the PERM position being offered.

Under the applicable regulations, two positions are considered substantially comparable when the positions involve the performance of the same job duties more than 50% of the time. Conversely, positions may be considered not substantially comparable when the duties performed in the prior position differ sufficiently from those of the offered position.

This distinction is particularly relevant when an employee has been promoted or transitioned into a role with materially different responsibilities. However, differences in job titles alone are not sufficient. The employer must evaluate the actual duties performed in each position and the amount of time devoted to those duties.

How Can Employers Demonstrate That Two Positions Are Not Substantially Comparable?

When relying on experience gained with the sponsoring employer, the employer should be prepared to document the differences between the foreign national’s prior position and the offered PERM position.

Relevant considerations include:

• Job duties: Whether the positions involve different responsibilities, functions, or areas of expertise.
• Time spent on each duty: The percentage of working time devoted to particular tasks in each position.
• Level of responsibility: Whether the offered position involves materially different responsibilities, such as managing projects, supervising employees, or making strategic decisions.
• Supporting documentation: Whether job descriptions, organizational charts, employment records, and other documentation substantiate the differences between the positions.

The employer’s explanation should reflect the positions as they actually existed, rather than relying solely on revised job descriptions prepared for the PERM process.

Example: Promotion from Software Developer to IT Project Manager

Suppose a foreign national initially works as a Software Developer, spending 100% of their time designing, writing, testing, and maintaining software. The employee is later promoted to an IT Project Manager position.

In the new role, the employee spends more than 50% of their time managing projects, coordinating teams, overseeing project schedules, and communicating with stakeholders. Less than 50% of their time is devoted to software development.

In this scenario, the employer may be able to establish that the Software Developer position is not substantially comparable to the IT Project Manager position. If the employer can adequately document the differences between the two roles, the experience gained as a Software Developer may be used to satisfy the experience requirements for the IT Project Manager position.

The analysis does not depend solely on whether both positions fall within the information technology industry. Rather, the focus is on the actual duties performed in each position and the percentage of time devoted to those duties.

Employers should also avoid assuming that a promotion automatically qualifies for the exception. Even when the employee’s title or seniority changes, the positions may remain substantially comparable if the employee continues to perform the same duties more than 50% of the time.

Key Takeaways

When preparing a PERM application, employers should keep the following principles in mind:

• Establish legitimate minimum requirements. The requirements must reflect the actual qualifications necessary for the offered position, not merely the employer’s preferences.
• Evaluate prior employment carefully. Experience gained with the sponsoring employer generally cannot be used to satisfy the PERM position’s experience requirements if it was gained in a substantially comparable position.
• Focus on actual job duties. The substantial comparability analysis considers whether the positions involve the same duties more than 50% of the time. Job titles alone do not determine the outcome.
• Maintain supporting documentation. Employers should be prepared to substantiate the differences between the prior position and the offered position through detailed job descriptions and other relevant records.
• Do not assume every promotion qualifies. A promotion may support the exception, but the actual responsibilities and time spent performing the duties must be evaluated.

Conclusion

Determining whether experience gained with the sponsoring employer can be used to satisfy a PERM position’s minimum requirements requires a careful, fact-specific analysis. Employers must establish that their stated requirements are legitimate and evaluate whether the foreign national’s prior position was substantially comparable to the offered position.

Before beginning the PERM process, employers should consult with experienced immigration counsel, particularly when the foreign national’s qualifying experience was gained within the same organization. A thorough assessment of the job requirements, prior employment, and supporting documentation can help employers identify potential issues early and reduce the risk of unnecessary delays or denials.

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.

For more information, or for a detailed conversation regarding your concerns about PERM, please schedule a time to speak here.

By: Jessica Palarca

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