Applying Work Experience for PERM Labor Certification
PERM Labor Experience and Requirements
One of the core requirements of the PERM labor certification process is that the sponsoring U.S. employer must establish the minimum level of education and experience necessary to perform the job. The U.S. Department of Labor (DOL) carefully evaluates these requirements to ensure the role is not being tailored in a way that unfairly excludes qualified U.S. workers.
A common challenge arises when a foreign national gains part—or all—of their qualifying work experience while employed by the sponsoring company itself. Many employers and employees wonder how the DOL views this situation. Let’s explore how the Department of Labor approaches on-the-job experience in the context of PERM labor certification.
How the Department of Labor Views On-the-Job Experience
From the DOL’s perspective, the focus is not on the ideal candidate profile but rather on the minimum qualifications required to perform the job. If the company attempts to set the new job requirements at “seven years of experience plus a bachelor’s degree,” the DOL may challenge this, since much of that experience was gained in-house. The agency views the original position as temporary in nature and requires the employer to first test the U.S. labor market to determine whether qualified American workers are available who meet the minimum—not enhanced—requirements.
Promotions and Non-Comparable Positions
Employers sometimes avoid this issue by promoting the employee to a higher-level role that requires substantially different responsibilities. If the foreign national is promoted into a new position that involves more than 50% different job duties, the DOL is more likely to accept the experience gained with the employer.
For example, if the employee moves into a managerial or senior-level position requiring advanced responsibilities not part of the original role, the prior experience with the company may be counted. It is crucial to demonstrate that the new job is not substantially comparable to the previous role. To ensure compliance with DOL rules, it is highly recommended to consult with an immigration attorney at Green Card Link for guidance.
Rehiring After Leaving the Company
What if the employee leaves the sponsoring company and is later rehired? The same principle applies. If the individual must rely on work experience gained with the company to meet the new role’s requirements, the employer must prove that the new position is not substantially comparable to the previous one.
For instance, if an employee originally hired with four years of experience works two additional years with the company, leaves, and later returns, the company cannot simply increase the requirement to six years plus a degree unless it can demonstrate that the new position is different from the prior role.
Using Outside Experience Toward PERM Requirements
If the employee gains qualifying work experience with another employer during the time away, that outside experience may be applied toward the new position. For example, if the worker spends a year at a different company before returning to the original sponsoring employer, that year of external experience can count toward the PERM requirements.
In such cases, the DOL will carefully review organizational charts, job descriptions, and payroll records to compare responsibilities across positions. Employers must be prepared to document and defend that the new role involves sufficient additional responsibilities to justify the experience requirement.
Common Approval Pathways
It is not unusual to see approvals when employees progress from entry-level positions into management or executive roles within the same company. Demonstrating a clear and significant increase in responsibility is key to satisfying the Department of Labor’s scrutiny.
PERM Labor Certification Requirements
Before an employer can begin the PERM process, several requirements must be met:
- The foreign worker must have a permanent, full-time job offer from a U.S. employer.
- The offered wage must meet or exceed the prevailing wage as determined by the DOL.
- The employer must conduct good-faith recruitment efforts to test the U.S. labor market and demonstrate that no qualified U.S. workers are available to fill the role.
- Employers must maintain detailed audit files with documentation of all recruitment efforts and compliance steps.
How Green Card Link Can Help
Navigating the PERM labor certification process can be complex, particularly when work experience gained with the sponsoring employer is involved. At Green Card Link, its immigration attorneys provide comprehensive guidance to ensure compliance with DOL requirements.
From preparing recruitment documentation to responding to DOL audits, the immigration attorneys at Green Card Link are experienced in handling even the most challenging PERM cases. If you have questions about whether your work experience qualifies for PERM labor certification, contact Green Card Link today to schedule a consultation with an experienced immigration attorney.