For many employers, sponsoring a talented employee for a green card begins with one critical step: PERM labor certification. Within this process, one question causes more confusion than almost any other: can the experience an employee gained while working for you be used to meet the job’s requirements?
The short answer is “sometimes.” In this guide, Orange Law attorney Karan Joshi explains the rules, the exceptions, and the documentation employers need to stay on the right side of the Department of Labor (DOL).
What Is PERM Labor Certification?
PERM (Program Electronic Review Management) is the DOL process that most employers must complete before filing an immigrant petition for an employment-based green card. Through PERM, the employer must show two things:
- No able, willing, qualified, and available U.S. workers can fill the offered position.
- Hiring the foreign worker will not hurt the wages or working conditions of similarly employed U.S. workers.
Before recruitment starts, the employer must define the job’s actual minimum requirements. These must be the real, business-necessary qualifications for the role, not a wish list built around one employee.
The General Rule: Experience With the Sponsor Is Limited
The DOL pays close attention to cases where the foreign national already works for the sponsoring company. As a general rule, an employer cannot count experience the worker gained with the same company if that experience came from a position substantially comparable to the one being offered for PERM.
Why does this rule exist? If the employer hired the worker without the required experience and the worker then learned the job on the spot, the DOL may doubt that the experience requirement is truly necessary. U.S. applicants should not be held to a standard the sponsored employee never had to meet.
Example: A company hires a recent graduate as a Software Developer. Two years later, it files PERM for the same Software Developer role, requiring a bachelor’s degree and two years of experience. Because the worker started with no experience and has done substantially the same work, the DOL is likely to question whether the experience requirement is legitimate.
The Exception: Positions That Are Not Substantially Comparable
DOL rules allow an exception. Experience gained with the sponsoring employer can be counted when it came from a position that is not substantially comparable to the PERM position.
Two positions are generally considered substantially comparable when the worker performed the same job duties more than 50% of the time. If the duties differ enough that this threshold is not met, the earlier experience may qualify.
A different job title alone is never enough. The DOL looks at what the employee actually did, and how much time was spent doing it.
Example: An employee works as a Software Developer and spends all of their time writing and testing code. After a promotion to IT Project Manager, they spend more than half their time managing teams, schedules, and stakeholders, with less than half spent on development. If the employer can document that shift, the developer experience may count toward the Project Manager role.
Also keep in mind that a promotion does not automatically qualify. If the employee still performs the same core duties more than half the time, the roles may remain substantially comparable despite a new title or higher pay.
How to Prove Two Positions Are Different
The burden of proof is on the employer. A strong PERM file typically addresses:
- Job duties: What responsibilities, functions, or skills distinguish each role?
- Time allocation: What percentage of the workday goes to each major duty in both positions?
- Level of responsibility: Does the new role involve supervising staff, leading projects, or making strategic decisions?
- Supporting records: Do job descriptions, organizational charts, performance reviews, and employment records back up the claimed differences?
Most importantly, the descriptions must reflect how the jobs really existed. Descriptions written after the fact, solely for PERM, can invite scrutiny, an audit, or a denial.
Common Mistakes Employers Make
- Setting experience requirements to match the employee’s resume instead of the job’s true needs.
- Assuming a promotion or new title automatically satisfies the exception.
- Failing to keep contemporaneous records of duties and time spent.
- Starting recruitment before reviewing the employee’s full work history.
Avoiding these errors early can save months of delay, since PERM processing and recruitment timelines are already long.
Frequently Asked Questions
Can any experience with my company be used for PERM?
No. Experience from a substantially comparable position generally cannot be used, but experience from a materially different role may qualify.
What does “substantially comparable” mean?
It means the employee performed the same job duties more than 50% of the time in both positions.
Does a promotion guarantee the experience will count?
No. The DOL examines actual duties and time spent, not titles.
Should I speak with an attorney before starting PERM?
Yes. Because this analysis is highly fact-specific, early legal review helps identify risks before recruitment begins.
Talk to an Immigration Attorney Before You File
The question of whether sponsor-gained experience can count is exactly the kind of issue that should be resolved before a PERM case is filed. At Orange Law, attorney Karan Joshi helps employers review job requirements, evaluate employment history, and build well-documented PERM applications that stand up to DOL review.
If you are planning to sponsor an employee for a green card, contact Orange Law today to schedule a consultation and get clear guidance on your PERM strategy.