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Labor Certification Under PERM - Frequently Asked Questions

46.

Under what circumstances may the alien use experience gained with the employer as qualifying experience?

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.

47.

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

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.’

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48.

Does the alien beneficiary need to have a bachelor’s or higher degree to qualify for a professional occupation?

No, the alien does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.

49.

Is the employer permitted to accept an equivalent foreign degree?

Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.

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