Frequently asked questions…
The new USCIS rule on Optional Practical Training (“OPT”) takes effect on May 10. It provides a longer extension of employment authorization for STEM graduates and enables more F-1 students to qualify as STEM graduates. However, employers face increased obligations under the new rule, including preparation of a detailed training plan, compliance with more extensive reporting requirements, and potential worksite inspections.
What is OPT and How Does It Work?
Under existing law, any foreign national student in the United States on an F-1 student visa may obtain permission to work for 12 months before or after graduation in a position that directly relates to their field of study. This permission, known as Optional Practical Training (“OPT”), must be granted by the student’s Designated School Official (“DSO”). The student must then apply to the USCIS for an Employment Authorization Document (“EAD”).
This OPT cannot be extended unless it is a STEM extension, meaning that (1) the student’s degree is on the USCIS list of STEM degrees (Science, Technology, Engineering, or Mathematics); (2) the employer is an E-Verify employer; and (3) the employment is directly related to the student’s most recently obtained STEM degree. The extension is valid for 17 months, giving the student a total of 29 months of employment authorization. Those who have completed their OPT and are in the 60-day grace period applicable to F-1 students are not eligible for a STEM extension.
The New Rule
The new rule provides for a 24-month STEM extension (rather than 17 months). This in effect provides F-1 STEM students with a total of 36 months of work authorization. The new rule also broadens the fields that qualify as STEM. In addition, F-1 students with a previously obtained STEM degree, followed by a non-STEM degree, can qualify under the new rule for the STEM extension so long as the prior degree is directly related to the employment. For example, an individual who obtains a bachelor’s degree in engineering, followed by an MBA degree, can obtain a STEM extension if the OPT job directly relates to the engineering degree.
“Cap gap” protection is preserved under the new rule for an F-1 student beneficiary of an H-1B cap petition that (1) requests a change of status to H-1B and (2) was filed while the OPT was valid. This cap gap protection provides an automatic extension of F-1 status and work authorization from the expiration date of the EAD through October 1, when the change of status to H-1B takes effect. (Of course, a student in valid F-1 status without OPT, or with an expired OPT when the H-1B cap petition was filed, receives only an F-1 extension of stay and not an extension of work authorization.) The new rule also confirms that an F-1 student protected by the cap gap may change employers.
An application for a STEM extension can be filed only after the employer and the F-1 student have submitted a signed, formal training plan to the DSO on new Form I-983. The plan must (1) state the specific goals for the STEM OPT period and explain how they will be achieved; (2) detail the specific knowledge, skills, or techniques that the employer will impart to the student; (3) explain how the training is directly related to the STEM degree; and (4) describe how the student will be supervised and evaluated. In the training plan, an employer must certify that: (1) the terms and conditions of the employment, including compensation, are commensurate with those applicable to similarly situated U.S. workers; (2) the student will not “replace” a full-time or part-time temporary or permanent U.S. worker; (3) the employer has sufficient resources and personnel to train the student; and (4) the training is directly related to the STEM degree and will achieve plan objectives. Compensation information must be shown in the plan. These additional employer burdens apply only to STEM extensions and not to the initial 12-month OPT program.
The employer and the F-1 student must complete a written performance evaluation after the first 12 months of OPT and again at the conclusion of the STEM extension program. The student must submit the evaluation to the DSO within ten days after the conclusion of the review period. The employer must notify the DSO within five business days if the F-1 student is terminated or departs the STEM OPT job.
All F-1 students on STEM OPT must report to the DSO (1) within 10 days after starting a new job; (2) within 10 days of a change in their legal name, residence address or mailing address, employer’s name or address, or loss of employment; (3) any material changes to the training plan “at the earliest available opportunity”; and (4) every six months to confirm the accuracy of the information in item 2 above. If there is a job change, the student must submit a new training plan to the DSO, who will make a new recommendation for STEM OPT.
Transition to the New Rule
USCIS will begin accepting applications for STEM extensions under the new rule on May 10, 2016. Before an application can be filed, the employer and student must submit the training plan to the DSO, who will recommend the extension by endorsing Form I-20. The student must then file Form I-765 with the USCIS to request the extension. The Form I-765 must be filed during the validity of the initial OPT and within 60 days after the DSO’s recommendation. If the initial OPT expires while the I-765 extension is pending, then the student is automatically authorized to continue working for up to 180 days while the application is adjudicated, as under the existing rule. Until May 10, USCIS will continue to accept STEM extension applications under the existing rule. A STEM extension that is granted before May 10 will be valid for 17 months and is subject to existing program requirements. In contrast, an application that is filed before May 10 but pending on or after that date will be adjudicated under the new rule, with the USCIS issuing a request for a training plan. If approved, the EAD will be issued for 24 months.
F-1 students who hold an unexpired 17-month STEM extension issued before May 10, 2016 can continue to work until their OPT expires. They can file for a 7-month extension between May 10, 2016 and August 8, 2016, if (1) they have at least 150 days remaining on their existing OPT when the application is filed and (2) all requirements under the new rule, including an approved training plan, are met. A student whose OPT expires while the extension application is pending receives an automatic extension of work authorization for up to 180 days while the application is adjudicated.
So, Why Would An Employer Accept This Additional Burden?
Answer: In order to position a STEM graduate for a 6-year H-1B work visa as part of its talent acquisition strategy. Most foreign graduates from U.S. universities hold a STEM degree. They are therefore eligible for 12 months of OPT and a 24-month STEM extension, providing work authorization for a cumulative 36 months under the new rule. United States employers use the H-1B visa to employ foreign nationals in engineering, information technology, finance, and other “specialty occupation” fields that require a bachelor’s degree or its equivalent for entry-level work.
Due to the visa quota, however, the H-1B visa is unavailable most of the year. The H-1B visa filing window opens on April 1. If petitions exceed the quota during the first five business days of April, then a lottery is held, with a selected petition enabling an H-1B employee to begin work on October 1. Last year, the chance of selection in the H-1B lottery was 36% for a master’s degree holder and 31% for a bachelor’s degree holder. (An advanced degree holder gets two tries in the lottery as a result of a 2005 amendment addressing the “brain drain” issue. In essence, some effort is being made by the USCIS to retain foreign students who earn advanced degrees in the United States. The new STEM extension rule is consistent with this effort by allowing multiple bites at the apple in successive years. Curiously, advanced degree holders who are not selected in the advanced degree lottery fall in with the bachelor’s degree holders for the second drawing, which seems contrary to the goal of retaining talent.)
An H-1B allows a cumulative 6 years of physical presence in the United States and is extendable in certain instances beyond the 6-year limit to permit completion of a green card. For this reason, employers are willing to incur the obligations associated with OPT and the STEM extension.
Here is an example of the strategy at work:
Vinod will obtain a mechanical engineering master’s degree from Texas Tech in May of 2016. He applies before graduation and obtains OPT employment authorization to work for Texas Instruments from June 2016 to June 2017. In February 2017, he extends his OPT for 24 months to June 2019 under the new STEM extension rule. The company files an H-1B petition for him in April 2017. If his petition is not selected in the advanced degree lottery or the general lottery, he can continue working while the company files another H-1B petition in April 2018. If his petition is selected in either lottery, he becomes an H-1B on October 1, 2018. If his petition is not selected, the company can file again in April 2019. If his petition is selected in either lottery, then he is protected by the cap gap provision between the time that his OPT expires in June 2019 and his H-1B becomes effective on October 1, 2019. As an H-1B, he then has an aggregate 6 years of employment eligibility in the United States, during which Texas Instruments (or any other company) can sponsor him for a green card and position his case so that he may remain in the U.S. working until the green card is issued, however long that may take.
What Is The Cost of Pursuing This Talent Acquisition Strategy?
For an H-1B visa petition, the USCIS offers “premium processing,” which for $1225 provides a decision several weeks earlier than a regular filing. In the lottery context, however, it does not provide any advantage whatsoever with regard to the chance of selection. Instead, it simply provides earlier notice as to whether the petition has been selected. The STEM beneficiary may insist on premium processing in order receive notification at the earliest time possible if the petition has indeed been selected.
Fortunately, if the petition is not selected, the USCIS refunds all of the filing fees, including the premium processing fee, so there is no financial “downside” to filing a lottery petition using premium processing unless the petition is in fact selected. If the petition is selected, then the employer has spent $2325 on regular USCIS filing fees plus $1225 on premium processing for a total of $3550. In addition, legal fees are incurred for preparing and filing the petition, whether it is selected or not. In the example given above involving Vinod, the company is spending $3550 in USCIS filing fees, plus legal fees for filing three H-1B petitions (in 2017, 2018, and 2019).
The beneficiary will also likely press the company to begin the green card process right away, in order to complete that process at the earliest possible time (and possibly to provide a safety net in case the H-1B petition is not selected in any of the lotteries). Often, in an effort to seek the fastest green card possible, the beneficiary will request that the company file for a green card in a category that is reserved for those few individuals at the top of their field. This is an expensive undertaking and, given the small likelihood of success in this category, the employer may decide to seek a green card simultaneously along the more conventional “market test” green card route. In all, a large sum can be spent by an employer seeking to obtain an H-1B in the lottery while accommodating the new hire with one or more green card filings.
Under the “portability” rules, however, the foreign national may change H-1B employers during the 6-year term. As well, they may also be able to use their place in line (established by the employer’s filing of the market test green card application) to finish their green card for another employer. Lastly, an individual can be the beneficiary of H-1B petitions by multiple companies at the same time, with the company whose petition is selected being the winner. For these reasons, a company should consider utilizing a reimbursement agreement to recapture the legally recoverable expenses incurred on behalf of an OPT beneficiary who departs to another employer shortly after significant money is spent on an H-1B petition or a green card, or both.
- Jeff works as a Pharmacist. He is being promoted to Pharmacy Manager. Both positions fall under the same occupational classification. No action is required.
- Yaohong works as a Pharmacist Intern. She will soon begin work as a Pharmacist. These positions fall under different occupational classifications. An H-1B amendment must be approved before she can begin work as a Pharmacist.
- Dagmar works as an Engineer II. Her promotion to Engineer III will not require any action, as both job positions fall under the same occupational classification.
- Srikanth will be promoted from Engineer IV to Director of Engineering. These positions fall under different occupational classifications. An H-1B amendment must be approved before he can begin work as a Director of Engineering.
- Lloyd works in TN status as a Pharmacist. A promotion to Pharmacy Manager does not require any action, whereas a promotion to General Manager requires an amendment.
- Karl’s promotion from Accountant to Chief Operating Officer requires an amendment to his E-2 status due to the different occupational classifications for these job positions.
This article address changes in job position for H-1B employees at the same location where they are presently working. For information regarding changes of work location, please see our article “Making Sense of Job Location Changes For H-1B Employees.” As well, for job position and location issues related to the green card process, please see “Making Sense of Job Position And Job Location Changes During The Green Card Process.”
- They can work at any location within their approved MSA simply by having the employer place a notice on the wall at the new work location on or before the day they begin work there.
- To work at a location outside of the MSA, the employee must have an amended petition approved before work at the new location begins. This takes 30 days.
- If the employer needs the employee to start immediately at a location outside of the MSA, the employer may place them there only if all of the following apply:
- It does not already have an LCA for that occupation at any location in the new MSA;
- It continues to pay the required wage under the LCA for the original work location;
- It pays all lodging, travel, meals, and related expensed during the placement at the new location (even on non-working days);
- It does not employ them at the new location for more than 30 days in the aggregate per year; and
- If the employee will work for more than 30 days at the new location, the employer either has the approved amended H-1B petition in hand by the 30th day or it returns the worker by that time to their previous location until the approval arrives.
The foregoing guidelines are based on the following considerations relating to H-1B employees. In order for an H-1B petition to be filed with the USCIS for a foreign national worker, a Labor Condition Application or “LCA” must first be filed with the USDOL. An LCA is valid for any location within the Metropolitan Statistical Area (“MSA”) or Primary Metropolitan Statistical Area (“PMSA”) in which the place of employment is located, or within “normal commuting distance” of that location. For example, if an LCA states that the H-1B employee’s place of employment will be Boston, then the LCA would cover (1) all locations within the MA/NH PMSA and (2) any other locations within a normal commuting distance. The term “MSA” as used in this article includes normal commuting distance. The LCA must specify the specific work location where the work will be performed. If an individual will work in multiple locations, then an LCA must be filed for each such location. When the H-1B petition is approved, the employee may then work at any location for which an LCA was filed. (Unlike an H-1B, an employee in TN, L-1, E-1, or E-2 status can work in the occupation at any location, moving from one to another without prior notice to or approval by the USDOL or USCIS.) Whenever a new work location comes into play, steps must be taken to ensure that the proper clearances have been obtained before work begins. When an employer needs to move an H-1B employee to a new location for which an LCA was not filed prior to the filing of the H-1B petition for that employee, one of three outcomes can occur:
- If the new location is located within the same MSA as any of the LCAs already filed for that H-1B employee, then the employee can move to that new location without any paperwork being filed with the government. Instead, the employer simply must post a 10-day notice on the wall at the new workplace before or at the time that the work begins;
- If the new work location is not within the same MSA, then the employer must file an LCA for the new location and must then file an amended H-1B petition based on that location, with the employee beginning work at the new location only after the amended H-1B petition is approved. This typically takes approximately 30 days to accomplish; or
- If option 1 above does not apply and the employer cannot wait to accomplish option 2 before relocating the employee, then the employer can place the worker at the new location immediately if the “short-term placement” rule applies. This rule allows the employee to be placed at a new location for up to 30 days per year* in the aggregate if:
- The employer has met all obligations under its LCA for the worker at the original work location;
- No strike or lockout exists at the new location in the occupation of the worker (such as “Pharmacist”);
- The employer continues to pay the required wage based on the original LCA and also pays all lodging, travel, meals, and incidental or miscellaneous expenses associated with the H-1B worker’s stay at the new location, for both workdays and non-workdays; and
- The employer does not already have an LCA for another employee in the occupation (such as “pharmacist”) in the new MSA. (Note: this means the entire MSA and not just the intended work location.)
Short-term placement cannot be used for the initial assignment with the employer, as an H-1B worker must first be placed at a regular worksite listed on the LCA used for the H-1B petition. The term “workday” means any day on which an H-1B worker performs any work at any worksite within the short-term area of employment. Workdays counted toward the limit may be nonconsecutive, and may be at different specific worksites. Non-working weekends, holidays, or other non-workdays do not count toward the 30-day maximum, even if the H-1B worker spends them in the area of the short-term placement. When an H-IB worker has reached the aggregate annual limit of “short-term placement” workdays in an area of employment, the employer may no longer employ that person there. As a practical matter, an employer should therefore file a new LCA and H-1B amendment as soon as possible for the new location. *To qualify for a 60-day short-term placement, an employer must also show that the H-1B worker (a) maintains an office or work station at his or her permanent worksite, (b) spends a “substantial amount of time” at that permanent worksite during a one-year period, and (c) has his or her U.S. residence or place of abode in the area of that permanent worksite and not in the area of the short-term worksite.
The Job Position Issue
Presently, green cards take many years to complete from the time that sponsorship begins. During that time, the sponsored individual may fill any job position at any location, so long as his or her temporary visa status permits work at that location. Here are a few examples of permissible options under federal immigration law:
- The company sponsors John for a green card based on the position of Engineer in Toledo. He must fill the Engineer position when the green card is approved many years from now. Until then, he can fill any position at any location in the United States, so long as his temporary visa status permits or is amended to permit that location.
- The company knows that, many years hence, it wants Mary to serve as Engineering Director in Seattle. Mary is presently an Engineer in Connecticut. She must fill the Engineering Director position in Seattle when the green card is approved many years from now. Until then, she can fill any position at any location in the United States, so long as her temporary visa status permits or is amended to permit that location. She can even fill the Engineering Director position now, but is not required to do so until the green card is issued.
- For John and Mary, if the USCIS takes more than 180 days to approve the final step of their three-step green card processes, then an “escape” clause erases the requirement that they fill the sponsored job position (Engineer for John and Engineering Director for Mary). Instead, they may work in the “same or similar occupation” for any employer. Whether the escape clause will come into play in a case is unknown, of course, until the very last moment many years down the line. Accordingly, an employer should not rely upon it.
The Job Location Issue
A PERM certification for a green card applies to a specific place of intended employment and the outlying area within normal commuting distance of the place of intended employment. There is no fixed distance that constitutes a normal commuting distance under USDOL guidelines, as the USDOL acknowledges that there may be widely varying factual circumstances among different areas (for example, normal commuting distances might be 20, 30, or 50 miles). If the place of intended employment is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), then any place within that MSA or PMSA is deemed to be within normal commuting distance of the place of intended employment. (In contrast, not all locations within a Consolidated Metropolitan Statistical Area (CMSA) are deemed automatically to be within normal commuting distance.) In addition, MSA/PMSA borders are not controlling in terms of defining the normal commuting distance. Therefore, a location outside of the MSA/PMSA may nevertheless be within normal commuting distance of place of intended employment. Here are a few examples of permissible options under federal immigration law, with the term “MSA” including normal commuting distance:
- The company sponsors a green card for Anne for the position of Pharmacist in Dallas. Before her green card arrives, the Dallas store closes, but the employer opens a store in Mesquite, which is in the same MSA as, or within normal commuting distance of, Dallas. When the green card arrives, Anne must fill the position of Pharmacist in Mesquite or at another store within the Dallas MSA.
- The company sponsors a green card for Ravi for the position of Financial Analyst in Chicago. Before his green card arrives, Ravi moves to the Milwaukee office. The company must either sponsor a new green card based on the Milwaukee location or return Ravi to Milwaukee or its MSA when the green card arrives.
Much of the dilemma with green cards arises from the fact that the governing federal law was written decades ago, when green cards did not take years to finish and when employees did not change positions and locations often. Fortunately, an employee can, but does not have to be, in the sponsored position when sponsorship begins. However, having an employee in the right position at the right time is challenging when the green card process takes many years to finish.
Mandatory Recruitment In All Cases:
- Place a 30 day job order with the applicable state job bank, which will forward resumes to the employer.
- Post the job opportunity information (including salary or a salary range the bottom of which is not lower than the prevailing wage) internally at the company for 10 consecutive business days in two conspicuous locations as well as in any electronic or print media that the company typically uses for similar positions.
- Place two Sunday ads in the local newspaper of largest circulation. (If the job is a professional one that requires an advanced degree plus experience, an employer may instead place one Sunday ad and one ad in a professional journal. However, this is generally not advised, since the professional journal ad may need to serve instead as one of the additional forms of recruitment.)
Additional Recruitment For Professional Positions:
If the sponsored job is professional, then the employer must also choose three of the following ten additional forms of recruitment:
- Advertise the position at a job fair.
- Post the job opening on the company’s website.
- Place the ad on a website other than the company website. (The newspaper that placing the print ad will typically have an online ad service that can satisfy this requirement.)
- Conduct on-campus recruitment.
- Advertise the position in a trade or professional organization journal or newspaper.
- List the position with a professional recruitment firm (headhunter). • Advertise in an established employee bonus referral program at the company.
- Advertise at a campus career services office.
- Advertise in a local or ethnic newspaper.
- Advertise by radio or television.
Applicants responding to the ads must be tracked. We recommend using a spreadsheet that shows all minimum job requirements and can be used to report results to the USDOL. This also serves as a helpful tool for keeping in focus the minimum qualifications being tested. If a candidate is clearly not qualified, each reason should be indicated on the spreadsheet. Applicants that might be minimally qualified must be contacted within 14 calendar days to determine whether they are, in fact, minimally qualified. If an applicant is minimally qualified and interested in the position, then the PERM labor certification cannot be filed. The recruitment documentation must be kept by an employer for at least 5 years. Though all PERM labor certification applications are filed online without documentation, applications are subject to both random and targeted audits. If audited, an employer must supply the documentation within 30 days. The following documents must be kept:
- A copy of the state job order and evidence that it was posted for 30 days.
- The original internal posting notices with dates of posting.
- Copies of Sunday newspaper print ads (and professional journal, if used). • Documentation of all other recruitment, including dated copies of that recruitment.
- Documentation of “business necessity” for any special job requirements.
- A signed original recruitment report.
* When the green card is ultimately issued, the employer must begin paying the prevailing wage. However, the salary or salary range for the sponsored position must be posted at the outset of the green card process and cannot be below the prevailing wage. This can cause issues in the workplace if, for example, the sponsored employee is in L-1 status making $85,000 and the prevailing wage is $100,000. The employer is not required to pay $100,000 unless and until the green card is issued, but the postings give the impression that the higher salary level is being paid presently. This is a consequence intended by the USDOL as part of the PERM market test.
The most common visa type held by a sponsored employee for this expedited green card route is the L-1A visa. However, (1) possession of an L-1A visa does not automatically qualify the employee for the EB-1 route; (2) possession of an L-1B does not disqualify an employee from the EB-1 route if they otherwise meet the eligibility criteria; and (3) possession of an E, H, or TN visa does not disqualify an employee from the EB-1 route if they otherwise meet the eligibility criteria. This article discusses the EB-1 route primarily in the context of the L-1A visa.
For an L-1 visa, an employee must have worked abroad as a full time executive, manager, or specialized knowledge worker for a related company for at least one year during the three years immediately prior to their transfer to the United States.
In contrast, the EB-1 green card requires that the employee worked abroad as an executive or manager for a related company for at least one year during the three years immediately prior to their transfer. This requires proof by organizational charts, letters from the U.S. and the foreign employers attesting to the executive or managerial duties, and other items demonstrating the following:
- Directed the management of the company or a component or function within the company;
- Established goals and policies for the company as a whole or a large division or component;
- Exercised wide latitude in discretionary decision making, including such areas as budgetary matters or client relations; and
- Received only general direction from higher level executives, stockholders, or the board.
- Managed the organization or a department, subdivision, function, or component of it;
- Supervised and controlled the work of other supervisory, professional, or managerial employees, or managed an essential function within the organization or a department or subdivision of it. (In other words, first line supervisors are not managers unless they supervise professionals.);
- Had the authority to hire and fire employees or to recommend personnel actions (if supervising other employees directly) or functioned at a senior level (if no direct supervision of others); and
- Exercised discretion over day-to-day operations of the activity or function.
The PERM three-step green card process takes many years to complete, whereas the EB-1 multinational executive and managerial route is a two-step process takes only 9-18 months to complete. The two-step process can be approached in two ways: (1) file both steps simultaneously or (2) file the steps in succession. The advantage of simultaneous filing is completion of the green card a few months earlier. The advantage of successive filing is in seeing whether eligibility for the multinational manager route is approved before incurring the costs of filing the second step. The USCIS does not provide expedited handling of the first step, so there is no middle position available. Given the substantial time difference between the two-step and the three-step processes, some applicants pursue the faster process despite their lack of eligibility. This has resulted in recent years in heightened scrutiny by the USCIS. Therefore, in order to succeed under the scrutiny imposed by the USCIS during the two-step process, an employer must make it exceedingly clear that the sponsored employee was and is an executive or manager. The strength of a petition asserting EB-1 multinational eligibility should therefore be assessed before deciding whether to file the second step application simultaneously. If the two-step process is unavailable, then the green card requires an additional first step known as PERM, which is a labor market process involving advertising in the marketplace to prove that no interested U.S. worker is able, willing, qualified, and available for the job position. Though this additional step takes approximately one year to accomplish, the overall time for completion of the three-step green card process is much longer than in the two-step process, because the three-step process is delayed due to visa quotas and backlogs whereas the two-step process typically is not. If an employee has limited time remaining on his or her temporary work visa, the employer should consider both (1) changing the employee to the H-1B temporary work visa category and (2) pursuing the slower PERM route simultaneously with the filing of the EB-1 route in order to cover all options. Here are some examples of the EB-1 process in action:
- John, an L-1A executive in the U.S. and a manager in Australia for the parent company, is EB-1.
- Janna, an E-2 executive in the U.S. and an executive in Finland for an affiliate, is EB-1.
- Vinod, an H-1B executive in the U.S. and a manager in India for a subsidiary, is EB-1. He will finish his green card in the same amount of time as John and Janna.
- Rajesh, an H-1B executive in the U.S. and a specialized knowledge employee for the Indian parent company, is not EB-1. He will finish his green card 5-10 years after John, Janna, and Vinod due to visa quotas applicable to India in the EB-2 and EB-3 categories.
- Dagmar, an L-1A manager in the U.S. and a specialized knowledge employee for the German parent company, is not EB-1. She will finish her green card 3-7 years later than John, Janna, and Vinod due to visa quotas applicable to Germany in the EB-2 and EB-3 categories.
- Menno, an L-1B executive in the U.S. and an executive abroad for the Dutch parent company, received an L-1B visa due to his company’s mistaken belief that the “specialized knowledge” category sounded more exclusive and seemed more beneficial to him. He is EB-1. He will finish his green card in the same amount of time as John, Janna, and Vinod
- If the employer requires work experience as a minimum requirement for the job, then the sponsored employee must possess that experience and cannot count any work experience that they obtained after they joined the company, unless the “substantially different” exception or the “different FEIN” exception applies, as discussed at the end of this article.
- The required number of years of work experience should kept to a reasonable minimum, since the USDOL will disallow any work experience requirement in excess of the Standard Vocational Preparation (“SVP”) rating for the job position. If the sponsored employee holds, for example, 15 or more years of experience, then an employer is understandably reluctant to assert that merely 3 years of work experience will suffice. To strike a balance, it may therefore be necessary to require 3 years of advanced experience.
- The job requirements should describe the position fairly, without being specifically tailored to the sponsored employee. However, they should not be so general that they fail to describe what a qualified candidate must indeed possess.
- An employer should not require any foreign language capability unless absolutely necessary, as doing so will automatically trigger an audit from the USDOL.
- The job duties must be set forth in a way that informs potential applicants of the nature of the position. They also provide context for the specific job requirements that are imposed. However, job duties are not job requirements and do not serve as a basis for evaluating candidates for the position. They should therefore be brief.
- The job requirements must be expressed quantitatively, so that the USDOL can evaluate whether an applicant is indeed qualified. Accordingly, discretionary requirements such as “working knowledge,” “thorough familiarity,” and “good communication skills” should be avoided.
- In order to withstand challenge, a minimum job requirement must be uniformly imposed at the company as a minimum requirement for the job. For example, if there are 5 employees in the Engineer I position, but only one of them holds an engineering degree, then the company cannot impose an engineering degree as a minimum requirement, unless the other four were hired so long ago that their credentials were not subject to the current standard.
- A short, specific list of minimum requirements is better than a long list containing items that really do not make a difference. For example, it is better to require “3 years work experience applying programmable logic controllers and control networks, including ProfiNet, ProfiBus, Ethernet IP, and DeviceNet communication protocols” than to require “3 years of software design” or “3 years of software design and use of MicroSoft Office, Word, Outlook, and Excel.”
Here are three examples of successful minimum job requirements:
- Research Scientist–Polymer Synthesis, Los Angeles, California. Optimizes best methods to synthesize, analyze, scale up, or employ new polymers and additives for aerospace applications. Must possess a Ph.D. or foreign equivalent degree in Natural Sciences, Materials Science, Chemical Engineering, Physics, or Chemistry plus three years of work experience involving aerospace polymer science research. Must hold three articles published or accepted for publication within the past five years in academic or publicly available patent literature regarding the physical and chemical properties of natural and synthetic or composite materials and ways to strengthen or combine materials or develop new materials with specific properties for application.
- Pacific Rim Division President, Chicago, Illinois. Responsible for engineering business activities in Pacific Rim. Duties include strategic planning, optimization of business and engineering personnel, and reorganization of engineering and business systems. Must possess a bachelor’s degree or foreign degree equivalent in mechanical engineering, industrial engineering, or materials science and 3 years work experience in the Pacific Rim as President or COO for a global company with branded products. 40% foreign travel required.
- Electrical Technology Specialist, Detroit, Michigan. Analyzes and directs the integration of production and manufacturing systems with existing business systems and processes. Requires a bachelor’s or foreign equivalent degree in Electrical Engineering and 3 years work experience (a) applying programmable logic controllers and control networks, including ProfiNet, ProfiBus, Ethernet IP, and DeviceNet communication protocols and (b) using a proprietary factory automation system and Siemens, Allen Bradley, and Mitsubishi automation systems.
The “Substantially Different” Exception
As mentioned earlier, if the employer requires work experience as a minimum requirement for the job, then the sponsored employee must possess that experience and cannot count any work experience that they obtained after they joined the company. However, if the job position in which the sponsored employee obtained the work experience at the company is “substantially different” from the position being sponsored in the PERM application, then it can be counted. Substantially different is defined by the USDOL as involving job duties that are at least 50% different. This is a position that an employer should take only if necessary and clearly winnable.
Example: A company hires Bipin straight out of graduate school as an engineer and he works for 4 years as an Engineer I. They now wish to promote him and they also wish to sponsor him for a green card. If they sponsor him for Engineer II and require 3 years of work experience, they cannot count his work experience with the company because the positions are not substantially different. If, in contrast, they sponsor him for Design Engineering Manager and require 3 years of work experience, then they can count his work experience if his duties in the new position will be 50% or more different than his Engineer I duties. (As to whether/when he can/must move into the sponsored position, please see our Article “Making Sense of Job Position and Job Location Changes During the Green Card Process.”)
Example: A company hires Dagmar as an Engineer II from a competitor, where she has worked as an engineer for 4 years as an Engineer I. They also wish to sponsor her for a green card. If they sponsor her for Engineer II and require 3 years of work experience, they can count her work experience with the competitor. The Engineer II position at the new company must, of course, uniformly require 3 years of work experience and the other employees in that position must possess that experience.
The “Different FEIN” Exception
The USDOL treats employment under a different FEIN as qualifying. Therefore, if the sponsored employee obtained work experience for a related company abroad or in the United States (such as a parent, affiliate, or subsidiary), then the work at that related company can be counted, regardless of whether the position at the related company and the sponsored position at the sponsoring company are substantially different. This exception should be relied upon, of course, only when necessary.