Immigration Law
You have worked at the same company for six years. Surely those six years count.
Often, they do not. Whether experience with your sponsoring employer can be used is one of the most common problems I see in EB-3 cases, and it is usually discovered late — after the job description has been drafted and everyone assumes the hard part is behind them.
There is an exception written into the regulation. Whether you fall inside it depends almost entirely on the job you used to hold, not the job you hold now.
Experience you gained before your sponsoring employer hired you always counts freely. If you spent four years at a previous company doing the same work, that experience is yours to use, and none of what follows applies to you.
The complication arises when some or all of your qualifying experience was earned inside the company that now wants to sponsor you. In that situation, the general rule is that the experience cannot be used — with two exceptions.
Most cases that succeed do so through the first exception. It rarely comes down to a legal argument. It comes down to documents.
PERM exists to test whether a qualified U.S. worker is available for the job. Your employer must advertise the position with its genuine minimum requirements and consider anyone who applies.
Now imagine your employer could require five years of experience that only you have, because only you were given the chance to earn it inside the company. The advertisement would be technically accurate and functionally closed. No U.S. applicant could ever qualify.
The Department of Labor's concern is that on-the-job experience given to one employee, and not available to outside applicants, becomes a hidden barrier. Once you understand that, the rule stops feeling arbitrary and starts feeling predictable — which matters, because predictable rules can be planned around.
The governing provision is 20 CFR 656.17(i)(3). In plain terms, it works like this.
DOL looks at the training and experience you possessed at the time your employer hired you. That moment is the anchor. Your employer generally cannot require U.S. applicants to have more experience than you had on your first day.
One detail catches people off guard: the regulation counts time you worked for the employer as a contract employee as well. If you worked through a staffing arrangement before being brought on directly, that time is treated as experience with the employer, not as outside experience.
The rule then gives two ways out.
This is the exception that carries most cases.
If you gained the experience in a position that was not substantially comparable to the job being sponsored, that experience can be used. The regulation defines a substantially comparable position as one requiring performance of the same job duties more than 50 percent of the time.
Read that carefully, because the comparison is between duties, not titles. A promotion and a new business card prove nothing. Two positions with completely different titles can be substantially comparable, and two positions with similar titles can be genuinely distinct.
The framework traces back to BALCA's decision in Delitizer Corp. of Newton, 1988-INA-482 (May 9, 1990) (en banc), which the current regulation codified. Delitizer is worth knowing about, because BALCA's list of relevant considerations was broader than the 50 percent duties test alone. It included:
The regulation reduced this to a cleaner test, but a certifying officer reviewing your file is still thinking along these lines. This is why I am cautious about one argument that circulates: the claim that the same duties can be performed in both roles as long as the percentage of time differs by more than 50 percent. It reads well on paper. In practice, cases built on it have been denied.
A related risk is worth naming. If your employer has a consistent practice of promoting only from within, that history can undercut the argument — not because promotion is improper, but because it suggests outside applicants were never realistically in the running.
The second exception permits the experience where the employer can show it is no longer feasible to train a worker to qualify for the position.
I want to be straightforward about this one. It is a narrow door, and I have not seen it carry a case on its own. It requires the employer to demonstrate something about its business circumstances, not simply to assert that training would be inconvenient or expensive.
Plan around exception one. Treat exception two as a supporting argument, not a strategy.
Here is a case pattern I encounter regularly, and one I am working through right now.
A client spent three years as a dispatcher. He was then promoted to fleet manager. His company wants to sponsor him for the fleet manager role — and the fleet manager position requires several years of prior experience.
The problem. His three years as a dispatcher were earned inside the sponsoring company. Under the general rule, that experience is off the table.
The struggle. This is where many employers make a costly assumption. They see three years of loyal service in the same building and conclude the requirement is satisfied. It is not satisfied automatically, and discovering that after the ETA-9089 is filed is far worse than discovering it beforehand.
The analysis. The question is not what he was called. It is what he actually did. Dispatching is largely load coordination, driver communication, and scheduling. Fleet management involves maintenance oversight, compliance, cost control, and supervision of personnel. In this case it appears likely that the two roles did not overlap in duties by more than 50 percent — which would place the dispatcher experience inside exception one and make it available.
I am still evaluating it, so I will not claim an outcome. But note the part that is not in doubt: his time as fleet manager cannot count, because that is the sponsored position itself. Only the earlier, different role is potentially in play.
That distinction is the entire article in one sentence. The experience that helps you is experience in a job you no longer hold.
Because this is decided on paper, the paper matters more than the argument. The regulation at 656.17(i)(5)(ii) names the acceptable documentation directly:
In my own review I ask for these plus the supporting trail: the promotion letter, the original offer letter, and any performance or role-change documentation.
If your HR team seems surprised by how granular the request is, this is why. We are not gathering background. We are building the record that decides whether three years of your working life can be used.
If you were promoted internally and sponsorship is now on the table, this is the moment to have the analysis done — before the job description is finalized and before anything is filed. I'm glad to look at it with you. Restructuring on the front end is straightforward. Fixing it later can mean starting the labor certification over, and given how long the PERM process already takes in 2026, that is a delay measured in years rather than months.
This question comes up constantly, and the regulation answers it cleanly.
For these purposes, "employer" means an entity with the same Federal Employer Identification Number. Different FEIN, different employer. Experience earned at a genuinely separate entity is generally treated as outside experience, even where the two companies are related by ownership.
That said, do not decide this from an org chart. Corporate structures, payroll history, and who actually issued your W-2 can complicate what appears obvious. And remember the contractor rule above: if you were placed at the sponsoring employer through an agency and functioned as its contract employee, that time may be treated as experience with the employer regardless of who signed your paychecks.
Bring the actual documents. The answer usually lives in the payroll records.
Four things to carry away:
Outside experience is safe. Anything you earned before this employer hired you counts without complication.
Your current job never counts toward itself. Time in the sponsored position cannot satisfy that position's requirements.
An earlier, genuinely different in-house role may count. The test is whether the duties overlap by more than 50 percent — and titles are irrelevant to that analysis.
This is won with documents, not arguments. Dated job descriptions, duty percentages, and org charts decide it.
Most importantly, this gets settled long before anything reaches the Department of Labor. The requirements your employer writes into the job description determine whether your case is viable, and by the time a problem surfaces in an audit, the options have narrowed considerably.
If you are in this position — promoted internally, waiting on sponsorship, unsure whether your years actually count — it is worth getting a clear answer early. To understand where this fits in the broader process, my complete guide to the EB-3 visa walks through each stage, and if your role is changing again, retention of priority dates explains what happens to your place in line.
Every case turns on its own facts. If this describes your situation, reach out and we can review your employment history together and determine what is genuinely available to you. You can also learn more about the employment-based green card work my office handles.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified immigration attorney.
Oleg Gherasimov, Esq.
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