Qualifying for the Job Using Experience Gained from the Same PERM Employer: Infeasibility to Train Exception
When an employer files a PERM Labor Application, it must demonstrate that the beneficiary fully qualifies for the sponsored position.
Generally if experience is required, a beneficiary cannot use the experience gained with the sponsoring employer to qualify for the sponsored position. But, as with most things, there are exceptions to this rule:
- Infeasibility to Train: Meaning it is no longer feasible for the employer to train a new worker to qualify for the position
- Positions are Not Substantially Comparable: For instance, if the beneficiary was hired in Job A, but was promoted to Job B, the Employer may require the experience the employee gained in Job A, but only if Job A and B are more than 50% different
This post will focus on the infeasibility to train exception, but first let’s quickly discuss why employers are limited to the exceptions above:
PERM labor is often the first step of the employment based green card process. As part of the PERM process, the sponsoring employer is required to conduct certain recruitment efforts to test the U.S. labor market. The employer must demonstrate that there are not sufficient U.S. workers who are qualified, able, willing, and available to perform the role.
To properly determine if a U.S. applicant is qualified, the Department of Labor (DOL) requires that the sponsoring employer only specify its actual minimum requirements for the sponsored position. This helps to ensure that the stated requirements do not exceed the qualifications of the sponsored beneficiary at the time of his/her hire.
Infeasibility to Train
The sponsoring employer cannot require that U.S. workers possess training and/or experience beyond what the beneficiary possessed at the time of hire.
So what happens if the employer now requires something more 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 exception may apply.
In the context of infeasibility to train, the employer carries the burden to prove why it’s 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.
In Matter of Kentrox, Inc., the Board of Alien Labor Certification Appeals (BALCA) discussed infeasibility to train and found that the employer provided enough evidence to establish that it could not train a U.S. worker for the job offered to the beneficiary.
In this case, the employer sponsored the beneficiary for a Software Engineer position, requiring a Master’s degree + 2 years of related experience. The problem was, the only qualifying experience provided on the PERM application was his work as a Software Engineer (same job) 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). In the letter 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. He also provided a detailed explanation of how critical the foreign worker’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 stage the product was currently at.
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 foreign worker 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 foreign worker’s invaluable knowledge of the product and (2) why U.S. workers could not timely acquire the skills needed for this role. Based on this information, BALCA reversed the Certifying Officer’s denial and ordered that the case be approved.
An infeasibility to train argument is usually reviewed with skepticism. 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. Always remember that your burden is high, so any tangible evidence that you provide will help to overcome that burden of proof.