If the alien beneficiary already is employed by the employer, the employer cannot require U.S. applicants to possess training and/or experience beyond what the alien possessed at the time of initial hire by the employer, including as a contract employee:
- Unless the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or
- The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
Note: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 per cent of the time.
For purposes of determining whether the alien gained experience with the employer, an employer is ‘an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3.’