PERM Approval on Reconsideration: Qualifying Experience Gained with PERM Employer
During the PERM recruitment process, an employer may advertise for a position that requires certain experience that is considered typical for the position. Such experience must be limited to actual minimum requirements necessary to perform the PERM position. This creates difficulty in establishing the employer’s actual minimum requirements because “actual minimum requirements” is a term of art not specifically defined by the Department of Labor (DOL).
In evaluating whether a beneficiary meets the employer’s actual minimum requirements, the DOL generally does not allow the use of experience gained with the sponsoring employer in order to qualify for the PERM position. This is because an employer may not require a U.S. worker to have experience beyond the experience required of a beneficiary. For example, if the PERM position requires a Master’s degree and 2 years of experience as a Software Engineer and the beneficiary has gained all qualifying experience with the sponsoring employer in that same position, the true minimum requirement for that job is really a Master’s degree and no experience. The DOL reasons that this requirement sets a higher standard for U.S. workers.
There are three exceptions to the general rule: i) the beneficiary gained the training and experience while working for the employer in a position that is not substantially comparable, ii) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the offered position, or iii) the beneficiary gained the experience with a related, but separate entity (For instance, working for a subsidiary of the same parent company).
Today we will be looking at the first listed exception to the rule, but for a discussion on the second listed exception, please go to my previous post: Qualifying for the Job Using Experience Gained from the Same PERM Employer: Infeasibility to Train Exception.
A beneficiary may satisfy the employer’s actual minimum requirement through his or her experience gained with the employer, so long as the position in which the experience was gained is not substantially comparable to the offered PERM position. A position is “substantially comparable” to another position if it shares more than 50% of the same job duties to be performed. So if the PERM position possesses distinct job duties of more than 50% than the previous position, the exception will apply and the beneficiary’s qualifications gained with the sponsoring employer will satisfy the employer’s actual minimum requirement.
To apply this concept, let’s take a look at a PERM case our office filed on behalf of an employer that was wrongfully denied, but then approved on reconsideration by arguing that the 2 positions were not substantially comparable.
We filed a PERM application for a Software Engineer position with actual minimum requirements of a Master’s Degree in Computer Science, Engineering or related and 1 year of experience as a Software Engineer, Programmer Analyst, or in a related position, or a Bachelor’s Degree in Computer Science, Engineering or related and 5 years of progressive experience as a Software Engineer, Programmer Analyst, or in a related position.
The beneficiary possessed a Master’s degree in Computer Science and therefore needed 1 year of experience to qualify. The employer wanted to sponsor the beneficiary whose sole experience was gained through the four years of work with the employer as a Programmer Analyst. Although the job description for Programmer Analyst listed on the PERM form was clearly more than 50% different than the job description listed for the PERM position, the DOL Officer still issued a denial on the case. The denial of the PERM application cited to 20 C.F.R. § 656.10 of the regulation, which provides that “The job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.”
In response to the denial, we sent the DOL a Request for Reconsideration on behalf of the employer explaining that the beneficiary gained his qualifying experience in a position that was not substantially comparable to the job opportunity, and therefore, the beneficiary meets the actual minimum requirements of the PERM position. Our approach was to compare the position of Programmer Analyst to Software Engineer and explain how they are distinct in job duties and responsibilities. We pointed out that although there are similarities in skill-sets, the position of Software Engineer builds on the position of Programmer Analyst. We also explained that the skill-sets for Programmer Analyst and Software Engineer were more than 50% different, and that any overlapping duties of a Programmer Analyst are mere incidental to the job duties performed by a Software Engineer. We made sure to list out the specific job duties for each position to demonstrate how they were distinct and provided additional information regarding the unique characteristics of each position. We essentially made the point that both positions may use similar tools and software to execute their job, but their overall job goals are distinct and therefore not substantially comparable. Further, the fact that a Programmer Analyst and a Software Engineer are grouped under different SOC (Standard Occupational Classification) codes helped us to make an even stronger argument. Based on these details, the DOL agreed that the positions were not substantially comparable and approved the case.
So when a beneficiary’s sole qualifying experience is gained with the same employer requesting a PERM certification, not all is lost. Just keep in mind that an exception may apply in certain circumstances, and if the two positions are not substantially comparable, then the beneficiary’s qualification may well satisfy the employer’s actual minimum requirements.
This can be a tricky situation. Therefore, all requirements and qualifications should be discussed with a qualified attorney before starting the process to be sure you are in compliance with the DOL standards.
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