ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily


Chinese Immig. Daily




The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Joel Stewart on PERM Labor Certification

Experience before, during and after being hired by the Employer

Rate this Entry

Question: I'm confused because the regs say that the DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee. Let's say you hired someone on a H-1B as a Programmer Analyst without specific software experience, and now you choose to file the Labor Certification for the same position, and you are requiring the skill gained on the job as a  minimum requirement. The alien that you hired on the H-1B while working for you gets certified based on the newly acquired skill. Based on my reading of the regs, he is going to get denied (at least at the I-140 stage) since he didn't have this experience at the time of hiring. If I were the DOL, I would argue that the alien never had such xperience when you initially hired him so why require it now? Now if it is for a different position, maybe a Software Engineer, where you claim the duties are different by more than 50%, then you could require the new skill.



Answer: All requirements must have been completed before the Labor Certification was filed with DOL. It doesn't matter who gave the training or who paid for it. However, when different positions are involved, the situation is different. The alien might have been hired as a Guarde Manger, then studied to be a Chef, and was then hired as a Chef. Here the alien has to prove that he/she was qualified as a Chef before the application for Chef was filed, but not before the alien was hired as Guarde Manger. This is due to the fact that Guarde Manger are two different jobs do not appear to be substantially comparable. The PERM rule states if the alien gained experience while working for the employer, the old and new jobs may not be substantially comparable. The Rule also defines "substantially comparable"  as meaning a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts and payroll records.

Submit "Experience before, during and after being hired by the Employer" to Facebook Submit "Experience before, during and after being hired by the Employer" to Twitter Submit "Experience before, during and after being hired by the Employer" to Google Submit "Experience before, during and after being hired by the Employer" to StumbleUpon Submit "Experience before, during and after being hired by the Employer" to Reddit Submit "Experience before, during and after being hired by the Employer" to Digg Submit "Experience before, during and after being hired by the Employer" to del.icio.us

Tags: None Add / Edit Tags

Comments

Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: