The PERM process allows U.S. employers to sponsor foreign nationals for green cards to allow them to live and work permanently in the United States. One important requirement for PERM is that the job cannot contain any requirements for education, skills, experience or training that the foreign national did not have at the time of being hired by the PERM employer. This means that any education, skills, experience or training that the foreign national gained while working for the employer that is sponsoring the PERM usually cannot be used to qualify the applicant for the PERM job.
This can be a big issue for a foreign national that gained all their experience with the sponsoring employer. For example, if a student was hired by a company while on OPT and only worked for that company for four years in the same role, it would be difficult for that employer to sponsor the foreign national, as the PERM job requirements could not include any of the employee’s four years of experience since it was gained with the sponsoring employer.
Can you ever use experience gained with the sponsoring employer?
Yes, but in very limited circumstances. In order to use experience gained with the sponsoring employer to qualify for the PERM job, you must be able to demonstrate that you gained the experience in a role that is not substantially comparable to the PERM job. In order to show the two jobs are not substantially comparable, you must show that they involve doing different job duties at least 50% of the time.
To determine if the experience can be used, the employer will need to create a detailed list of job duties for each position the employee held within the company, including the PERM job, and then figure out how much time is spent on each duty to determine if they can reasonably argue that the employee spent at least half or more of their time doing different job duties.
How does this work in practice?
Let us look at a couple examples to see how this would work in practice.
- The employee has been working at large clothing chain for three years in the Advertising department as an Account Executive. The company wants to transfer the employee to work as a Retail Buyer in the Merchandising department and sponsor the employee for a green card for the Retail Buyer position. In this case, the jobs of Account Executive and Retail Buyer are significantly different, and the company can likely make a strong case that the employee will do different tasks as a Retail Buyer more than half of the time. Therefore, the company can use any skills or experience the employee gained while working as an Account Executive in the PERM job requirements.
- Let us take the same example, but rather than being transferred to the Retail Buyer position, the Account Executive is promoted within the Advertising department to manage other Account Executives. In this situation it is likely that the job duties would not be different enough, meaning that the 4 years of experience could not be utilized in the PERM job requirements.
If an employee has gained all their experience with the sponsoring employer, it is important to work closely with immigration counsel to determine the viability of the case. The PERM is for a prospective position that the employee will hold once they get their green card, so if there is flexibility in designing the PERM job, it may be possible to utilize the experience gained with the employer by differentiating the PERM job from the prior jobs the employee has had with the PERM employer.
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