PERM Labor Certification Application Including On-the-Job Experience, PERM, Labor Certification, PERM Application, On-the-Job Experience

Home | William's Answers for Immigration and Visa Questions

PERM Labor Certification Application Including On-the-Job Experience

Hi William,

My employer will file PERM labor certification application for me soon. I have received extensive experience in the employer's systems and applications. Can we include my current extensive experience in the minimum educational and experience requirements for the offered position in PERM application?

Answer,

Generally, you cannot use on-the-job experience from the sponsoring employer for a PERM application unless the previous position was not substantially comparable to the new one, meaning it didn't require performing the same job duties more than 50% of the time. This is a common exception, but it increases the risk of an audit and can slow the process, so it's often recommended to avoid it.

U.S. Department of Labor is only interested in the minimum requirements for a person to do the job, not the requirements for the ideal candidate. Thus, the DOL will be skeptical if the employer files a PERM labor certification application for the position, which states that the requirements for this particular job are a bachelor’s degree plus five years of experience. Therefore, using on-the-job experience in a PERM labor certification application may increase the risk of a DOL audit and decreases one’s chances of approval. The restrictions on the use of experience with the sponsoring employer influences some people to change employers, when they otherwise would not do so.

There are exceptions for using experience gained with the same employer which may include:

1) The previous job was not substantially comparable: You may be able to use experience from a previous role with the same employer if that job is significantly different from the one you are applying for. A "substantially comparable" job means a position that requires performing the same duties more than 50% of the time. To prove this, you may need to provide documentation like position descriptions, payroll records, and organization charts.

2) The employer is unable to train: An employer can only use the exception if they can demonstrate that they are unable to train a U.S. worker to fill the role, as they did for the sponsored employee. This requires a detailed explanation and cannot be based on simple inefficiency or hardship.