For purposes of permanent residency through the labor certification process, the general rule is that experience gained with the same employer may not be used to qualify the alien for the position. If the alien gains his experience through the employer, the Department of Labor takes the view that the job requirements are not the actual minimum requirements. There are, however, two exceptions to the general rule. First, the experience may be used when the position in which the experience was gained is significantly different from the permanent position. Second, the experience may be used if the employer can show that it is now infeasible to train someone in that position. The regulations of the U.S. Department of Labor at 20 C.F.R. 656.21(a)(6) state the rule in the following way:

The employer shall document that its requirements for the job opportunity, as described represent the employer's actual minimum requirements for the job opportunity, and the employer has not hired workers with less training or experience jobs similar to that involved in the job opportunity or that it is not feasible to hire workers with less training or experience than that required by the employer's job offer.

The issue arises as to what factors are relevant in deciding whether the previous position and the permanent position are significantly different. In Delitizer Corporation of Newton, the Board of Alien Labor Certification Appeals ("BALCA") provided guidance on distinguishing between similar and dissimilar jobs. As such, the panel stated the following:

Some relevant considerations on the issue of similarity include the relevant job duties and supervisory responsibilities, job requirements, the position of the jobs in the employer's job hierarchy, whether the position is newly created, the prior employment practice of the employer regarding the relative positions, the amount or percentage of time spent performing each job duty in each job and the job salaries. 88 INA 482

Obviously, the bigger the variation between the two jobs in regard to the above factors, the more likely it is that the Department of Labor will view the jobs as dissimilar. Similarly, the more factors the employer can prove, the better the chance of the jobs being treated as dissimilar. In Yamasho, Inc., the BALCA panel was quick to point out that "do minimus supervisory responsibilities, however, are not sufficient alone to show that the two jobs are not similar." 89 INA 203

There are four cases from the region covering Dallas, Texas in which the Board of Alien Labor Certification Appeals addresses the issue of whether the positions in question are dissimilar. Two of those cases found that the jobs were dissimilar. See In the Matter of Conde, Inc., 87 INA 598; In the Matter of E & C Precision Fabricating, Inc., 89 INA 249. In Matter of Conde, Inc., the Board of Alien Labor Certification Appeals reversed a labor certification denial by finding that the alien had gained the required experience in another position with the employer. In that case, the alien had gained more than one year experience as a "planner" and sought labor certification as a "Senior Planner/Urban Designer". The BALCA panel concluded that the two jobs were dissimilar, thus falling outside the provisions in 20 CFR 656.21(b)(6). In reaching the decision, the panel sided with the employer in that the position of planner is "entry-level with limited duties performed under close supervision" while the position of "Senior Planner/Urban Designer" includes supervising "other technicians and draftsmen in the formulation, preparation and processing of master plans". Apparently, the panel felt that the level of responsibility was more than just "de minimus supervision" as mentioned in the Yamasho, Inc. case.

In Matter of E & C Precision Fabricating, Inc., the BALCA panel found the positions of "Machine Operator Trainee" and "Machine Operator" were dissimilar. 89 INA 249. The court considered several factors. First, only the Machine Operator runs the brake and shear machinery due to the sophistication and dangerousness of the machines. Second, the Machine Operator reads detailed blueprints and the trainee does not. Third, the Machine Operator trains the Machine Operator Trainee. Fourth, the standard practice in the industry is to require experience for the Machine Operator position while the Machine Operator Trainee is an entry-level position. Finally, the machine operator is paid about 35% more than the machine operator trainee. Thus, the panel concluded that the two positions involve "different levels of skill, responsibility, experience required and pay".

In the Matter of Pillowtex Corporation, the employer sought labor certification for the position of "Garnett-Machine Operator." 89 INA 170. One of the minimum requirements for the position was one month experience as a Garnett-Operator Trainee; the beneficiary had gained said experience while working for the same employer. The panel found that the job of Garnett-Machine Operator and Garnett-Operator Trainee were similar. In so doing, the court looked at the job duties performed in each position and concluded that the trainee learns the same skills that are required of the skilled craftsmen. The panel said:

It is improper for an employer to hire an alien with no experience, train him for job, and then to require that amount of experience in a similar job offered in the application for alien labor certification.

Similarly, In the Matter of Loews Anatole Hotel, the panel compared the two positions of "Hotel Credit Manager" and "Accounts Supervisor" and concluded that the two jobs were similar. The panel thought it was "quite apparent that the alien was first employed without any hotel accounting, or credit experience, and was trained for the job of Credit manager while employed by his employer", 89 INA 230.

In regard to the second exception, infeasibility to train U.S. workers, the employer must present documentation of said infeasibility. In the Matter of MMMATS, Inc., the employer tried to fall within the infeasibility to train exception. 87 INA 540. Without providing any documentation, the employer simply stated that it could not train workers due to its growth developments and expansion efforts in Florida. The panel stated that the mere statement of infeasibility was not sufficient alone to invoke the exception.

The employer is unlikely to prevail on the infeasibility argument where the requirement involves a short term of experience. For example, the panel of In the Matter of Pillowtex Corporation held that the one month training period underscored the feasibility to train United States workers. 86 INA 170. Having failed on the argument of dissimilar jobs as discussed previously and also the infeasibility to train argument, the employer's labor certification case was denied.

In sum, experience gained with the employer can be used for purposes of satisfying the minimum requirements in an Application for Alien Labor Certification only when the two jobs are dissimilar or the employer documents the infeasibility to train United States workers. Thus, the employer is left with a few options. First, the employer can demonstrate that the two jobs are dissimilar. Second, the employer can document the infeasibility to train United States workers. Third, the employer can show that the alien has the experience from previous jobs with other employers.

For additional information on how experience impacts a foreign national's immigrant category, click here.