Substantially Comparable” in PERM Work Experience

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.