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What happens when a foreign national’s only qualifying experience for PERM purposes was gained working for the sponsoring employer?

August 01, 2014
Tahreem Kalam

When it comes time for an employer to sponsor a foreign national employee for a green card, one of the hurdles the employer and foreign national must go through is assuring that the foreign national meets the specific experience requirements for the PERM position. The PERM (or labor certification) process is the first step of the three step employment-based green card process. In this step, the employer must carry out recruitment for the position to test the U.S. labor market.

An employer is required to state its actual minimum requirements for the PERM position. In general, the employer must demonstrate that the foreign national met the minimum requirements for the PERM position prior to joining the employer. In other words, the employer must document that the foreign national gained the qualifying experience with a different employer.

What happens if the foreign national gained the necessary experience while working for the sponsoring employer? “The regulations provide two means for avoiding denial of the application based on a failure to state the actual minimum experience requirement. One is documentation that the [foreign national] gained the experience while working for the employer in a position not substantially comparable to the position for which certification is being sought. The other is… documentation that it is no longer feasible to train a worker to qualify for the position.” Kentrox, Inc., 2012-PER-00038 (Bd. Alien Lab. Cert. App. May 22, 2014).

A recent decision by the Board of Alien Labor Certification Appeals (BALCA) addresses the “infeasibility-to-train” provision. In Matter of Kentrox, the employer sponsored the foreign national for permanent employment in the U.S. for the position of “Software Engineer” and required 24 months of experience. However, the only experience listed in the PERM application was the foreign national’s work for the sponsoring employer as a Software Engineer. The Vice President of Engineering provided a statement detailing the complexity of the position, the critical role of the foreign national in the company’s current phase, and why it would not be feasible to train a new employee. Specifically, the company was in the midst of releasing new software updates every six to nine months. The VP of Engineering stated that training a new employee would cause the software development phase to stall and it would take at least two years to catch up to the current stage of the product. He concluded that with a six to nine month release cycle, “there is just not enough time to provide training or allow even an experienced Software Engineer to attain the level of specific product structure knowledge necessary to perform at the required level.”

The case states that the Appeal File contained no documentation directly supporting the Vice President of Engineering’s statement, but that his statement was thorough and specific, and demonstrated firsthand knowledge about whether training for the PERM position was feasible given the Employer’s business situation. BALCA found the statement to be credible and sufficient evidence, and approved the PERM application based on the statement by the Vice President of Engineering.

If you have any questions about the qualifying experience requirements for a PERM position, or whether a foreign national employee can use his or her experience gained with the employer to qualify for a PERM position, please feel free to contact the attorneys at Minsky, McCormick and Hallagan, P.C.

By:  Tahreem Kalam, MMHPC’s newest Associate Attorney

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