PERM experience with the same employer is one of the most common problem areas in employer-sponsored green card cases.
In many PERM cases, the sponsored employee has already worked for the sponsoring employer for several years. Because of this, employers often assume that the employee’s experience with the company can be used to satisfy the PERM job requirements.
This can create a serious issue.
PERM is not only about whether the foreign national is qualified today. It is also about whether the employer is testing the US labor market for the offered position using proper minimum requirements. If the employee gained the required experience while working for the same employer, the Department of Labor (DOL) may question whether that experience can be counted.
This issue often comes up when an employee started in a lower-level role, gained experience over time, and is later sponsored for a PERM position with the same company.
- PERM focuses on the employer’s true minimum requirements, not just whether the foreign national is qualified today based on same-employer experience.
- Experience gained with the same employer usually cannot support PERM requirements if the employee lacked that experience when first hired.
- There is a limited exception when prior and PERM roles are not substantially comparable, but employers must carefully compare and document job duties before recruitment.
Why PERM Experience With the Same Employer Usually Does Not Count
How PERM Experience With the Same Employer Creates a Problem
The problem usually starts when the employee did not have the required experience before joining the sponsoring employer.
For example, an employee may join a company with little or no related experience. After working for the company for several years, the employee becomes experienced and valuable. The company then wants to sponsor the employee for a PERM position and list two years of experience as a minimum requirement.
From the employer’s point of view, this may seem fair. The employee now has the experience and can do the job.
But PERM looks at a different question.
The Question DOL Actually Asks
The issue is whether the employer can require US applicants to have experience that the sponsored employee did not have when the employer first hired the employee.
If the employer hired the sponsored employee without that experience, DOL may question why the same employer is now requiring that experience from US workers. This can make the requirement look like it is not the true minimum requirement for the job.
For that reason, same-employer experience should be reviewed before the PERM requirements are finalized.
A Common PERM Scenario
From Junior Analyst to Senior Analyst
This issue is easier to understand with a specific example.
An employee may first work as a Marketing Assistant or Junior Marketing Analyst. After several years, the employer may want to sponsor the employee for a Marketing Analyst or Senior Marketing Analyst position and require two years of marketing experience.
If those two years of experience were gained only with the sponsoring employer, the employer needs to be careful. DOL may question whether the experience can be counted, especially if the prior role and the PERM role are very similar.
This does not mean the employee is not qualified. It means the PERM requirements must be reviewed under the PERM rules before recruitment begins.
The Limited Exception for a Different Position
There is one limited exception that may apply when the experience was gained in a different position.
Experience gained with the same employer may be considered if the employee gained that experience in a position that was not substantially comparable to the PERM position. In simple terms, the prior role and the PERM role must be meaningfully different.
What the Employer Should Compare
A different job title alone is not enough. The employer should look at the actual job duties, how much time the employee spent on each duty, the reporting structure, and the records that support the difference between the two roles.
Under the PERM regulations, a substantially comparable position generally means a position requiring the employee to perform the same job duties more than 50% of the time.
Why This Exception Should Not Be a Default Strategy
This exception should not be treated casually. Even if the prior role and the PERM role have different titles, the employer still needs to review whether the duties overlap too much. The experience must also be relevant to the PERM position. A different job does not automatically make the experience usable.
In practice, this is not always easy to prove. For that reason, employers should not rely on this exception as a default strategy. It should be considered only after a careful review of the facts and supporting documents.
What This Means for Employers
Review Same-Employer Experience Before Recruitment Begins
A problem can arise when the employer wants to use the employee’s experience with the same employer to satisfy the minimum experience requirement for the PERM position. If the employee did not have that experience before joining the company, DOL may question whether the requirement is truly the employer’s minimum requirement for the job.
Before starting PERM recruitment, the employer should carefully review the employee’s prior qualifications, work history with the company, prior job duties, current job duties, and the proposed PERM requirements.
