Can I Use the “On-the-Job” Experience in My PERM Labor Certification Application?

Question, 

I worked for my current employer for more than 2 years. In my PERM labor certification application, can I include my experience with the current employer as the required experience?

Answer,

The PERM labor certification application should state the employer’s minimum educational and experience requirements for the offered position. It could be an issue if the alien employee gained all or a part of the required experience for the position while employed by the sponsoring employer. The required education and experience should be limited to the minimum for any person applying for the job. The U.S. Department of Labor (DOL) is skeptical of the accuracy of the stated minimum requirements, if these requirements exceed the qualifications when an applicant was initially hired by the employer.

The DOL is only interested in the minimum requirements for a person to do the job, not the requirements for the ideal candidate. Thus, the DOL will be skeptical if the employer files a PERM labor fora position which states that the requirements for this particular job are a bachelor’s degree plus five years of experience "for the ideal candidate."

Although the employer may consider the position as already filled by an alien employee, but DOL views that the alien employee's job is temporary, allowed to work in U.S. temporarily based on the H1-B or L-1 or other working visa. There should be a test of the U.S. labor market for the permanent position to be filled by the U.S. employer, to ensure that there are no able and willing U.S. workers who are minimally qualified and can perform the alien employee's job adequately.

Using on-the-job experience in a PERM labor certification application case may increase the risk of a DOL audit and decreases the chances of PERM labor certification application approval. It is unfortunate that restrictions on the use of experience with the sponsoring employer influences some people to change employers. In some cases, alien employee may need to use on-the-job experience to qualify for particular positions. While it is challenging, it is also possible to use experience gained with the sponsoring employer.

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