PERM: Utilizing Experience Gained with the Same Employer and a Foreign Language Requirement

A successful PERM application will show there are no qualified, willing, able and available U.S. workers for the position and will clear the way for a foreign national to pursue permanent residence in the U.S.

To show there are no qualified U.S. workers, employers must test the labor market by completing various forms of recruitment in the area of intended employment. For additional information on recruitment, see the article "PERM Recruitment: A Formula for Speed and Success.

Before recruitment starts, the company will prepare a summary of job duties and requirements as the basis for the application. The requirements listed on the PERM application form, and little else, are what employers can use to disqualify applicants. Unlike recruitment under normal circumstances, the PERM process does not allow for use of subjective criteria such as personality or fit within the team. The drafting of job requirements is thus a critical part of the process.

Two issues in preparing job requirements for PERM applications deserve special attention: experience gained with the sponsoring employer and requiring fluency in a foreign language.

Experience Gained with the Sponsoring Employer

Companies spend significant resources to train employees and it is often this training that makes them indispensable to the team. A Software Engineer may have developed a program specifically for the company and in the process gained knowledge of the company that an outsider would not have. A Business Analyst may spend hours researching the company's markets, clients and methodologies and will have an advanced understanding of how the company works – again, knowledge an outsider will not have. However, this knowledge typically cannot be used to meet the requirements for a PERM application because it may give the foreign national employee an unfair advantage over U.S. job applicants. In general, only experience a foreign national had before joining the sponsoring employer can be relied upon in a PERM application.

There is an exception to this general rule. Experience gained with the sponsoring employer can be used if it can be shown that the foreign national will be sponsored for permanent residence for a position that is "not substantially comparable" to the position in which he gained the experience. This standard, sometimes called "New Delitizer,"* requires a showing that the job duties of the two positions are at least 50% different. If this can be shown, then the experience gained in Position 1 with the sponsoring employer can be used to qualify the foreign national for Position 2.

For example, if a foreign national worked as a Software Engineer and is then promoted to IT Manager, the experience gained as a Software Engineer might be usable to qualify the foreign national for the IT Manager position because the duties of the managerial position are likely sufficiently different from the duties of the non-managerial position. However, if the foreign national is promoted from Software Engineer I to Software Engineer II, the duties of these two positions will likely be too similar and the experience gained in the first position cannot be relied upon. In general, it is easier to show the positions are not substantially comparable when the foreign national moves from a non-managerial position to a managerial position.

If it becomes necessary to use this standard in a PERM application, it is helpful to prepare a chart comparing the job duties of both positions, and assigning percentages to each duty. The chart will help make it clear that the positions are not substantially comparable, and can be submitted to the Department of Labor in case of an audit.

Foreign Language Requirement

A requirement that an applicant must be fluent in a language other than English often raises questions from the Department of Labor in PERM applications. Foreign language requirements are often seen as unduly restrictive by the Department of Labor, but can be used if the employer can show valid business reasons for the requirement.

An employer can show "business necessity" based on the nature of the occupation (e.g., translator or foreign language teacher) or based on the need to communicate with a large number of employees, customers or contractors in a foreign language (e.g., Marketing Manager, Latin America). In either situation, the employer must be prepared to present evidence that fluency in a foreign language is essential to the position. Business necessity can be shown by outlining the job duties and demonstrating that knowledge of the foreign language is essential to the job. Additionally the employer should be prepared to present documents in the foreign language, with English translations (e.g., correspondence that relates to the position, portions of brochures or manuals that are used by the person in the position, etc.). The need for the foreign language can be also be demonstrated by a list of the number and proportion of clients, contractors or employees who cannot communicate effectively in English, or by a plan to market products or services in foreign countries.

Additional information on foreign language requirements can be found in the Department of Labor regulations at 22 C.F.R. 656.17(f)(2) and on the Department of Labor website.

*Under the old labor certification rules, experience gained with the same employer was governed by Matter of Delitizer of Newton, 88-INA-482 (BALCA 1990) (en banc).