• Hui Zeng, Esq.

Minimum working experience requirements of green card in detail



Abstract: A PERM (Permanent Labor Certification) issued by the Department of Labor allows an employer to hire a foreign worker to work permanently in the United States. This is a required phase for the majority of the applicants applying for employment-based immigration.


For the PERM application, the U.S. employer must include the education and/or experience necessary to perform the offered job. This must be limited to the minimum that the employer would have required from any person applying for the job. Among the many cases we worked on, each case differed depending on the beneficiary’s profession and position, nonetheless, one thing they shared in common was that: the required work experience had a tremendous impact on their application results. Sometimes, the requirement of one year of work experience can eliminate many applicants. Therefore, this leads us to the question of how the applicants leverage their work experience to meet the minimum requirement and increase their chances of application approval?


Client consultation:


We received a call from Ming (not his real name) today to inquire about his application for PERM.


Ming’s basic background:


Ming entered an IT company in New York to work as a programmer after he completed his graduate study in Computer Science. After entering the company, he received 3 months of intensive training including software programming, software scheme optimization, and risk control. Upon completing the training, the company started delegating specific tasks to Ming. For the position of “JAVA Programmer”, Ming spent 70% of the time in data entry and code writing, 20% of the time on checking code and optimizing programs (basics, correcting errors), and a small portion of the time on group discussion and communicating with the superiors. Three years later, Ming still works at the same company and his position is now “NET Programmer” in which he is interested in applying for PERM.


He reaches out to us to inquire about whether if the first 3 years spent in the company as JAVA Programmer can be included in his work experience in the PERM application (NET Programmer position) submitted by the company on his behalf? E.g. we could say, this NET Programmer positions requires at least 3-year working experience.


After understanding the situation, we have learned that even though Ming had a slight increase in his salary, however, the responsibilities of the two positions are the same. Therefore, we do not advise setting a minimum requirement of 3 years of work experience for this NET Programmer position.


Why?


The employer can prove the employee’s qualification for PERM by, first: the employee’s knowledge and skill’s advantage. E.g., the company can cite examples such as through the company’s systemic training, Ming has become a software engineer that can program independently, which proves that Ming has acquired systematic knowledge and independent programming ability that he didn’t have before.


More importantly, according to immigration law, the employer should also make an essential and quantitative distinction between the original position (JAVA Programmer) and the proffered position (NET Programmer) of the employee. Because the whole PERM application process involves evaluating both the foreign applicants and U.S. applicants for the same position, that is to say, the employer can only credit the applicant’s previous work experience to the minimum requirement of PERM. If the applicant’s entire work experience in the employer’s company is to be taken into account, a complete “on the job” argument will need to be precisely and straightforwardly presented to prove the duties of the former and latter positions are at least 50% different, thus to conclude that the duties of these two positions are not “substantially comparable”.


Successful case


Wen (not his real name), who also worked in the IT industry, entered an IT company to work as an engineer after his graduation. Different from Ming, by the time the employer submitted the PERM petition for Wen, he had already been promoted to the position of an IT manager, with at least a 50% difference in job responsibilities from his former position. In this case, Wen’s on-the-job work experience as an engineer can be used to fulfill the position requirement.


To compare the responsibilities of the two positions precisely, we will usually make a table and indicate the percentage of time each responsibility takes in the daily tasks under each position.




When proving the differences between the two positions are greater than 50%, the key is the job responsibilities have to correspond accordingly to the duties assigned, rather than just simply listing out the job responsibilities and the percentage of time spent. We have to logically lay out the argument with sufficient evidence to present to DOL, as each situation varies, therefore the approach will also be different based on each situation.


Based on Wen’s example, in the initial comparison of responsibilities provided to us by the client, the manager position only differs from Wen’s former position in which it has an added task of “daily management”, and it is common for the employer and applicant to interpret this difference alone can fulfill the 50% of the requirement. In other words, can we make the statement that Wen spends more than 50% of his time each day supervising other engineers? Apparently not, and therefore we need to use other changes or shifts in the job responsibilities to support our argument. In the case cited in this article, after several discussions and revisions, we have determined the major shifts of responsibilities in the new position.


Conclusion


PERM application is an extremely complex process. To increase the chance of success, it is necessary to carefully select and analyze the new and former job responsibilities in order to form a substantive argument.



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Biography of Attorney Hui Zeng:


Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.

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