PERM process is a process where a U.S. company sponsors a foreign worker for an employment based green card. The process involves obtaining a prevailing wage determination, filing a Labor Certification, filing an I-140 petition , and finally applying for the actual green card petition.
James graduated from a US University 5 years ago and immediately started working for Company ABC. James gained all his professional experience working for Company ABC and he has been in the U.S. on an H-1B visa since he graduated. Company ABC now wants to sponsor James for a PERM green card.
This Whether or not the Department of Labor may raise an issue with requiring experience on top of experience James had when he first started working for the company will depend on what is the PERM position and what James has been doing for the company until now.
The regulations indicate that if the two jobs are “substantially comparable” (meaning that the job requires performance of the same duties at least 50% of time), then the employer should not require more experience than the employee had at the time he was hired, as otherwise these would not be the actual minimum requirement for the job.
If the two jobs are different, meaning that in the PERM job the employee will be performing different job duties at least 50% of time, then the employer could potentially require more experience than the employee had at the time of hire. Please note that it does not matter whether the employee worked for the employer a W-2 employee or 1099 contractor.
How can you show that the two jobs are different?
The employer should keep evidence such as the descriptions of the 2 positions, the percentage of time spent on various job duties for both positions, organizational charts, and payroll records. This is in case that the Department of Labor conducts audit and wants to see supporting documentation about this.
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