The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ’s on our website.
If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is “not substantially comparable to the position for which certification is being sought.” This includes any positions the foreign national has held as a contract employee with the sponsoring employer.
The PERM regulations define substantially comparable as “a job or position requiring performance of the same job duties more than 50 percent of the time.” Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.
Employers should also consider whether the experience was gained with the same employer. Experience gained with a foreign parent, affiliate or subsidiary entity is usually not the same employer. By definition, the same employer is one with the same Federal Employer Identification Number (FEIN). Any experience the foreign national employee has gained with a related entity, inside or outside of the U.S., can be used for PERM purposes so long as the sponsoring employer has a different FEIN.
If the labor certification does require experience the foreign national gained in a position with the sponsoring employer, it is important that differences in the positions be sufficiently documented. This can be accomplished through position descriptions, a record of the percentage of time spent on the various duties, organization charts, and payroll records. Requiring experience the foreign national gained with the sponsoring employer can be detrimental to a case if the experience was not gained in a position that was substantially different, and it is incumbent upon the employer to prove as much. Thus, it is in the employer’s best interest to have as much evidence to substantiate their position as possible.