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If two jobs with the same employer are truly
distinct, US workers are not denied training opportunities unfairly gained
by foreign nationals with the same employer. Foreign workers, including
those working as contractors, are not being trained on the job when they
are gaining experience in a truly different job. The PERM allows employer
to show the alien was hired in or contracted to work in a different job
for the employer, but the employer must prove the job in which the alien
gained the experience is not substantially comparable to the job for which
certification is being sought. A ¡°substantially comparable¡± job or
position means a job or position requiring performance of the same job
duties more than 50% of the time. Employers can document this by providing
job descriptions, the percentage of time spent on various duties,
organizational charts and payroll records. Employers can also accept
experience gained with that employer when it can demonstrate that it is no
longer feasible to train a worker to qualify for the position.
But what is the definition of
¡°employer¡± for purposes of determining the experience can be used?
DOL now is simply defining an employer as ¡°an entity with the same
Federal Employer Identification Number.¡±
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