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An Employer cannot require experience or skills necessary to perform the duties of the PERManent position when a U.S. worker can acquire those skills “in the occupation during a reasonable period of on-the-job-training” See 20 CFR 656.17(g)(2) at https://www.law.cornell.edu/cfr/text/20/656.17.

Additionally, “[i]n evaluating whether the alien beneficiary satisfies the employer’s actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer’s expense . . .” See 20 CFR 656.17(i)(4) at https://www.law.cornell.edu/cfr/text/20/656.17.

Experience, training or skills acquired while working for the employer or at the employer’s expense is allowed where the job in which the foreign beneficiary gained the experience/training/skills is “not substantially comparable to the position for which certification is being sought.” See 20 CFR 656.17(i)(3)(i) at https://www.law.cornell.edu/cfr/text/20/656.17.

A “substantially comparable” job or position means a job or position requiring the performance of the same job duties more than 50 percent of the time.

This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records. See 20 CFR 656.17(i)(5)(ii) at https://www.law.cornell.edu/cfr/text/20/656.17

In determining substantially comparable positions, BALCA held that different SOC codes and job duties, alone, are not sufficient; that supervisory responsibilities standing alone would not establish dissimilar positions.

The following is a list of items/documents that could be utilized to determine dissimilar positions:

  • Job Duties in as much detail as possible and the percentage of time spent performing each job duty.
  • Supervisory responsibilities, if any
  • Job Requirements
  • Positions in the employer’s job hierarchy of the jobs being compared
  • Whether and by whom the positions were filled previously
  • Whether the position is newly created
  • Prior employment practices of the employer regarding the positions
  • Job Salaries

This list is not exhaustive nor listed in order of importance.

It is recommended that when the beneficiary qualifies for the PERManent position through the petitioning employer, that you seek a review from an Expert Evaluating company to give a preliminary analysis of position comparability.

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