Experience Gained While Working Only for the PERM Employer: Exceptions to the Rule!

Experience Gained While Working Only for the PERM Employer: Exceptions to the Rule!

05SEP

A question that is sometimes asked by clients who are filing a green card application for an employee is:

“Can the company sponsor someone for the green card if the employee has only gained experience with this company?” The answer is YES*. 

When an Employer files a Labor Certification Application, it must show that the employee qualifies for the position. According to the regulations, a foreign worker cannot qualify for the sponsored position by using experience gained with the sponsoring Employer if the job is exactly the same as the job the employee is in now. But, as with most things, there are exceptions to this rule*:

1. Infeasibility to Train:Meaning the Employer is no longer able to provide the type of experience and training that it provided to the sponsored employee
2. Substantially Different Jobs:If the sponsored employee was hired in Job A, but was promoted to Job B, the Employer may require the experience the employee gained in Job A, but only if Job A and B are more than 50% different
3. Different FEINs: For example, working for a subsidiary of the same parent company

Today this post will focus on the first exception as the Board of Alien Labor Certification Appeals (BALCA) recently dealt with this issue. In Matter of Kentrox, Inc, BALCA discussed infeasibility to train and found that the Employer in this case provided enough evidence to establish that it could not train a U.S. worker for the job offered to the foreign worker. In this case, the Employer was sponsoring the foreign worker for a Software Engineer position, requiring a Master’s degree + 2 years of related experience. But, the only experience listed under the employee’s qualifications on ETA Form 9089 was his work as a Software Engineer with the sponsoring Employer. In its Audit request, the Labor Department asked the Employer to either document how the jobs are different or why it was no longer possible to train a U.S. worker to qualify for the job. Wisely, the Employer chose to demonstrate infeasibility to train.

In its audit response, the Employer provided a detailed letter from its Vice-President of Engineering (VP). In the letter the VP explained that the company was in the middle of a “Critical product maturation phase” for the next 3 years and would be releasing new software updates and releases every 6-9 months. He also provided a detailed explanation of how critical the foreign worker’s contributions to the product were. Finally, the VP thoroughly explained that if the company was to hire a U.S. worker with just a Master’s degree and no experience, the software development phase would stall and it would take 2 years to catch up to the stage the product is currently at. The Labor Department rejected this argument for infeasibility to train.

On Appeal, BALCA explained that the Employer’s burden of proof for infeasibility to train is high. Taking this into consideration, the Board still felt that the Employer made a credible presentation for the need to keep the foreign worker on. Further, although direct documentation was not provided, BALCA found that the VP was clearly “intimately knowledgeable” about the company’s products and business needs. BALCA felt that the Employer provided specific examples regarding (1) The foreign worker’s invaluable knowledge of the product and (2) why U.S. workers could not timely acquire the skills needed for this role. Based on this information, BALCA ordered that the case be approved.

An infeasibility to train argument is usually reviewed with skepticism. Employers should remember that a simple statement of inefficiently or economic hardship will not suffice. A written statement by someone very knowledgeable about the company and its goals/products along with supporting documentation is always beneficial when presenting an infeasibility to train argument. Always remember that your burden is high, so any tangible evidence that you provide will help to overcome that burden of proof.