If an employer hires an alien for a position and then later decides to start the Green Card process on the alien’s behalf there may arise problems as to establishing the employer’s actual minimum requirements. In the PERM recruitment process an employer may advertise for a position requiring a certain amount of experience that is considered normal for a position. If the alien beneficiary only qualifies for the PERM position based on experienced gained working for an employer in the same or “substantially comparable” (SC) position then a PERM petition will be denied.

In a perfect situation it would be best to not have to rely on experience gained with an employer because such a situation is a common audit trigger. But, in reality it is often necessary to use experience gained with an employer to qualify for certain visas statuses (EB-2 for example). When it is necessary that work experience gained with a petitioning employer be used for a PERM it is equally necessary to document that this experience came for a position that was substantially different than the PERM position.

Situations where experience gained from an employer is needed to be proven to be substantially different are usually cases of aliens seeking EB-2 status with a bachelor’s degree plus 5 years of post graduate experience. For alien’s seeking EB-2 status based on their Master’s degrees it is not particularly important to worry about prior experience unless a petitioning employer normally requires experience on top of an advanced degree.

Actual Minimum Requirements

A major component of DOL review in the PERM process is determining an employer’s actual minimum requirements for a job. Essentially this concerns whether or not an employer has hired people with less experience/education for a position than what is being advertised and listed on ETA Form 9089. If an alien only meets an employer’s listed minimum requirements due to experience gained while working for that same employer in the same or similar position then DOL will question the employer’s actual minimum requirements.

In order for a PERM process to be in good faith it must be actually open to US applicants and not tailored to the specific qualifications of the alien beneficiary. Imagine that an employer hires an alien for the position of entry level secretary (requiring no experience) and then 5 years later files a PERM for the alien for a job that is the exact same as an entry level secretary. But, for the PERM position the employer requires applicants to have 5 years of experience. Since the employer hired the alien for the same position 5 years ago with no experience it is not justifiable to require 5 years of experience if the employer has hired people with less experience in the past. In this case the DOL will not see that a position is truly open to US applicants and will judge it to be tailored to the alien’s qualifications. In reality the employer has had lower minimum requirements for the position. According to the DOL the employer may be changing its actual minimum requirements just to maintain the employment of the alien.

How to Determine if Positions are Substantial Comparable

For PERM Labor Certification (LC) purposes, substantially equivalent means two positions that share identical job duties at least 50% of the time. Thus, for a position to be substantially different it must have distinct job duties that make up 51% of the new positions work time. For PERM purposes an employer never WANTS two positions related to an application to be substantially equivalent. There is actually a box to check when filing ETA Form 9089 which asks: “Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested?” If the answer is “Yes” then there will almost certainly be an audit, and in the event of an audit an employer will have a hard time explaining the alien’s experience meets the PERM standards.

If experience gained with an employer is required for an alien to qualify for a PERM position then it is imperative to show that the alien gained experience in a position NOT substantially equivalent.

Example:

Employer A hires alien Chen for a position based on Chen’s H-1B. When Chen starts employment with Employer A she has a bachelor’s degree and no previous experience in the job. After 5 years of working with Employer A, Chen becomes the beneficiary of a PERM petition. The new position for which a PERM is being filed is essentially the same position as Chen had when she first started working for Employer A. During the mandatory PERM recruitment Employer A advertises the position as requiring a bachelor’s degree and 5 years of experience. Even though Chen does have 5 years of experience, this PERM case will be denied since Chen gained her experience only through working with Employer A in a substantially comparable position.

Some comparison criteria used to determine if two positions are substantially comparable are:

1. Job Duties
2. Supervisory Responsibilities
3. Job requirements
4. Where the job fits in the employer’s hierarchy
5. Whether the PERM position has been previously filled by another employee
6. If the PERM position has been newly created
7. Previous hiring standards
8. The percentage of time spent on each job duty
9. Job salary

To document that two positions are NOT substantially comparable a petitioning employer will need to submit descriptions of the positions, the percentage of time dedicated to each job duty, organization charts, and/or payroll records. These are the types of evidence mentioned in federal regulations pertaining to the PERM process. As such we can see that numbers 1 and 8 from the above list are the comparisons that carry the most weight and are the most commonly relied upon to answer SC audits.

Job Duties, Hierarchy, and Percentage of Time Spent on Each Job Duty

Board of Alien Labor Certification Appeals (BALCA) decisions relating to the “substantially comparable” issue make it clear that simply different job duties are not the most important thing in determining if two positions are more than 50% different. For instance, supervising other employees can be a job duty that would make one position different than the other. However, according to BALCA, supervisory responsibilities alone do not mean that a position is substantially dissimilar to a previous position. For instance, supervising could mean that an employee has all of the same requirements as a previous job but supervises the work of a single employee for one hour out of the day. This would not be enough on its own to show that two positions, one supervisory the other not, are substantially different.

A good way to think of this situation is on a daily schedule. If an alien employee was hired by an employer to work as a chef, then we can imagine the daily schedule of a chef: kitchen work, preparation of dishes, quality control, produce management, and of course cooking. Later, as part of a PERM application the employer wants to offer the alien the position of head chef. The only difference between chef and head chef is that the head chef position involves supervising and requires experience. In this situation the alien employee gained all of his/her experience with the petitioning employer. So, if we think of the daily schedule of a regular chef, then a head chef would have to change the daily schedule to include only 49% of what he/she used to do as a regular chef in order to qualify for PERM. If the only difference in job duties is supervising, then is it realistic that a head chef will spend 51% of the day merely supervising others? Only 49% of the day would involve kitchen work and cooking? Probably not. So, just having different job duties is not enough to show that two positions are substantially different; there needs to be documentation that the time spent on new/different duties will be at least 51% of the new positions schedule.

Conclusion

Any time that experience gained from an employer is used in support of a PERM petition there is the risk of audit. While it is possible to document substantial difference in two positions with the same employer, it is still likely that an audit will occur. Even when an audit arising from this particular situation can be explained/documented by a petitioning employer, it is still never a good idea to open a PERM case to an audit. Audits, even when answered properly, slow down the green card process. In worse scenarios an audit arising from questions of “substantially comparable” positions may lead to exposing other deficiencies in a PERM petition.

In short, even winnable audits are always best to be avoided if possible. If it is absolutely necessary to utilize experience gained with an employer to qualify for EB-2 status then it is recommended to contact an experienced immigration attorney. The process of distinguishing between two positions in a related field and establishing substantial difference is a complicated process. Even though PERM is an attestation based system, mere assertions by an employer that two positions are not substantially comparable will not meet the employer’s burden of proof. Work schedules, prior hiring practices, pay roll information, and job duty percentages will need to be adequately documented in order to prove that an alien gained relevant experience in a substantially different job.

(Updated 10/2/2012 by AD)

References

Code of Federal Regulations: 20 CFR. § 656.17(i)(5)(ii)
Matter of Brent-Wood Products, Inc., 1988-INA-259 (Feb. 28, 1989)
Matter of Your Employment Service Inc., 2009-PER-00151 (Oct. 30, 2009)
Matter of Palomino Service, Inc., 2009-PER-00068 (Nov. 2, 2009)

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.