Can Experience Gained With The Petitioning Employer Be Used?
A. Employers may continue to use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).
A. Employers may use experience gained by a foreign national with the petitioning employer (as an employee or contractor), but only where the experience was gained in a position that was not “substantially comparable” to the position involved in the labor certification. A prior position will be considered “substantially comparable” if at least 50% of the duties of the two positions are the same. For example, if a software engineer who spends 100% of her time implementing software is promoted to a team leader position in which she spends 20% of her time managing and 80% of her time implementing software, the two positions are “substantially comparable” and her experience as a software engineer cannot be used to qualify her for the position of team leader (of course, her experience prior to joining the employer as a software engineer could be used, if it was enough to qualify her as a team leader).
Related Questions
- For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?
- Are there any restrictions on using the experience gained while working for the Petitioning Employer?
- Can Experience Gained With The Petitioning Employer Be Used?
