In our last email we discussed qualifying an entry-level employee for a labor certification. We discussed the specialization of companies which result in the employee gaining skill sets and the employer offering a position which requires those skill sets.
One immediate hurdle to this strategy is the rule that experience gained with the petitioning company cannot be used to qualify for the job. Unfortunately for DOL, this is certainly not true if we look at DOL’s regs and relevant BALCA and Federal Court case law.
If you look into one of the immigration law practice’s main treatise, Kurzban’s Immigration Law Sourcebook (18th Ed.), Chapter 10, p. 2655, you will find an interesting discussion on qualifying work with the same employer for a labor certification. While it was true under the old Delitizer decision by BALCA, it was difficult to meet the “substantially different” or “job similarity” tests. That is less true under the current DOL regulations and case law. Page 2655 of Kurzban’s explains this with citations to the most important cases.
In most cases, the experience gained through the same employer becomes “usable” by incorporating the job requirements for both positions (or more positions) into what is called a Progression Affidavit. This document, if executed truthfully and appropriately, will address each and every legal requirement to use experience gained by the same employer.
Finally, since we will be claiming the entry level job is substantially different than a higher, offered position, a new LCA and, therefore, a new H-1 petition and extension of status are required to support our legal position that the higher position used for the labor certification can require experience gained with the same employer, even for entry-level jobs. This approach has a 100% success rate with our Firm, which includes anywhere from dozens to hundreds of Labor Certifications we file each year. So, be sure to add this arrow to your HR immigration quiver.
