Can Experience at Your Current Employer Count for PERM? The Substantially Comparable Rule Explained

The years you spent at the company now sponsoring you may not count toward your PERM job's requirements, and that one rule can move your case from EB-2 to EB-3.

Part of our guide to PERM labor certification.

Usually not, if you gained it doing the same job. For PERM experience gained with the same employer, the rule in effect as of November 1, 2026 is 20 CFR 656.17(i)(3): your sponsor generally cannot require US applicants to have more experience than you had on the day it hired you. There are two exceptions. You gained the extra experience in a position that was not substantially comparable to the PERM job, or the employer shows it can no longer train someone for the role. Experience from other employers, including affiliates with a different FEIN, is not limited this way.

Status as of 2026-11-01: 20 CFR 656.17 is in effect and unchanged. DOL's PERM labor-market-test NPRM (RIN 1205-AC29) cleared OIRA review on 2026-10-23 but is unpublished, and no comment period is open.

Can PERM experience gained with the same employer count?

Only in two cases under 20 CFR 656.17(i)(3), in effect as of November 2026. Experience you gained at your sponsor, including as a contract worker, can be required for the PERM job if you gained it in a position that was not substantially comparable (one that did not involve the same duties more than half the time), or if the employer shows it is no longer feasible to train a worker.

This bites hardest if you joined your sponsor straight out of a US master's. Your OPT, STEM OPT and H-1B years there are all experience "while working for the employer," and in the same role they generally cannot be written into the PERM job. If PERM is new to you, start with our step-by-step guide to getting a green card while on H-1B.

What 20 CFR 656.17(i) actually says

The core sentence, from 20 CFR 656.17 on the eCFR (text current through 2026-10-29):

"The employer can not require domestic worker applicants to possess training and/or experience beyond what the alien possessed at the time of hire unless: (i) The alien gained the experience while working for the employer, including as a contract employee, in a position not substantially comparable to the position for which certification is being sought, or (ii) The employer can demonstrate that it is no longer feasible to train a worker to qualify for the position."

The two definitions in 656.17(i)(5) decide most cases:

"The term 'employer' means an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

"A 'substantially comparable' job or position means a job or position requiring performance of the same job duties more than 50 percent of the time."

Paragraph (i) of 20 CFR 656.17, as of 2026-11 (in effect)

The logic is the labor-market test. PERM asks whether qualified US workers are available for the job as the employer defines it, which is why your employer runs the ads covered in our explainer on PERM recruitment and the recruitment report. Requiring experience the employer gave you on the job would screen out US applicants who look exactly like you did on day one.

What does "substantially comparable" mean in PERM?

It is a duties test, not a title test. A position is substantially comparable to the PERM job if it required "performance of the same job duties more than 50 percent of the time." Your title, level and salary band do not decide it; how you spent your working time does.

The regulation says the difference "can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records." Those records must match what actually happened: the employer signs the Form ETA-9089, and DOL can audit it under 20 CFR 656.20.

Does a promotion make the new job different enough?

Only if your duties changed. A level bump with the same core work, such as Software Engineer I to II, usually leaves the roles substantially comparable; a move where most of your time shifts to different work, such as managing people, may not. The employer's immigration attorney decides from the documents, not the title.

How common role changes look under the duties test (as of 2026-11)

If you are moving from IC to manager, our IC-to-engineering-manager playbook for visa holders covers the H-1B amendment side of that promotion, and our guide to a promotion during the green card process covers what it does to a PERM or I-140 already on file.

Does experience at an affiliate count as the same employer?

Only if it shares your sponsor's FEIN. Because 656.17(i)(5)(i) defines the employer by FEIN, experience at a parent, subsidiary, sister company or foreign affiliate with a different FEIN falls outside this rule and is treated like experience at an unrelated company. Another team, office or division under the same FEIN is the same employer.

Two edge cases come up often:

• Contract work at the sponsor. The text says "including as a contract employee" twice. If you worked at your sponsor through a staffing vendor before it hired you directly, the text puts that work in the same bucket as direct employment.
• Mergers and FEIN changes. If your employer was acquired or restructured, which FEIN your years sit under is a fact question to raise with the attorney before the requirements are drafted.

Does OPT or STEM OPT experience at the same company count?

It counts as experience with the employer, which is exactly the problem: in the same role, it generally cannot be required. The rule looks at the employer, not your work authorization, so post-completion OPT, STEM OPT, cap-gap and H-1B time at the same FEIN is all experience "while working for the employer."

A CPT internship at the same company is also work for that employer. Whether DOL would treat your internship start or your full-time start as your "time of hire" is a question for the employer's immigration attorney. If you are still on STEM OPT and your role changes, your Form I-983 training plan may need an update, and your DSO tells you whether yours does.

Worked example: one employer from OPT to H-1B (hypothetical)

A hypothetical engineer joins one company straight from a US master's and never leaves.

Timeline and how 656.17(i) treats each stage (as of 2026-11)

Three ways the PERM job could be written:

• Path A: the same job, master's only. That does not exceed the baseline, so (i)(3) is not a problem, and a master's requirement can support EB-2, but only if a master's is the employer's real minimum. If the company hires bachelor's graduates into the same role, (i)(2) becomes the problem.
• Path B: the same job, master's plus two years. All three-plus years were at the sponsor in comparable roles, so the employer generally cannot require them unless it shows training is no longer feasible.
• Path C: a genuinely different role. The engineer becomes an engineering manager who spends most of the time managing a team. A PERM for that role requiring a master's plus two years of software development can rely on the individual-contributor years if the roles are in fact not substantially comparable and the records support it. The (i)(1) and (i)(2) checks still apply: two years must be the employer's real minimum for that manager role, and it must not have filled comparable manager jobs with people who had less.

None of this is a drafting technique: the role, the changed duties and the records all have to be real.

Why this rule often decides EB-2 vs EB-3

Because EB-2 depends on what the PERM job requires, not only on the degree you hold. Under 8 CFR 204.5(k)(4), the labor certification's job offer "must demonstrate that the job requires a professional holding an advanced degree or the equivalent." If the requirements your employer may list fall short of that, the case is EB-3.

The USCIS EB-2 page, tracking 8 CFR 204.5(k)(2), treats a bachelor's "followed by at least five years of progressive experience in the specialty" as equivalent to a master's. So:

• With a US master's, a same-job PERM can require the master's alone, which is EB-2 level with zero experience, subject to the (i)(2) check.
• With a bachelor's, EB-2 needs a bachelor's-plus-five-years requirement. Arrive with two years from a previous employer, add four comparable years at your sponsor, and the job can generally require only a bachelor's plus two years: an EB-3 case.

The consequence people miss: experience from a previous employer is not limited by (i)(3) at all, so years that cannot be required where you earned them could support an EB-2-level requirement at a new employer. A move also means a new PERM and I-140, so weigh it, and any existing priority date, with an attorney; our guide to upgrading from EB-3 to EB-2 explains when an old priority date can carry over.

Which category is faster depends on your country of chargeability, and right now it is not always EB-2.

Employment-based cutoffs, November 2026 Visa Bulletin (released 2026-10-22), as of 2026-11-01

Values are as reported in Fragomen's November 2026 bulletin summary; Ogletree's summary shows Mexico on the same dates as the rest of the world. USCIS requires the Dates for Filing chart for November employment-based I-485s, per its adjustment filing charts page; consular cases always use Final Action Dates. The December bulletin was not out as of 2026-11-01, so any December date is a forecast; watch the State Department's Visa Bulletin page.

For India, EB-3's Final Action Date is later than EB-2's this month, and on the Dates for Filing chart the two are the same (2015-01-15). For the rest of the world, EB-2 is ahead on both charts. Our November 2026 Visa Bulletin explainer goes deeper.

How a PERM case handles experience with your sponsor, step by step

1. Collect letters from previous employers now. Under 8 CFR 204.5(g)(1), USCIS wants each to give the writer's name, address and title and "a specific description of the duties performed."
2. Request from HR the position description for every role you have held at the sponsor, with an honest split of your time.
3. Give your employer's immigration attorney your full history: vendor time at the company, internships, and every OPT, STEM OPT and H-1B period.
4. Expect the employer to request a prevailing wage on Form ETA-9141 through DOL's FLAG system once the requirements are set.
5. Prepare for the pre-filing recruitment required by 20 CFR 656.17(e); US applicants are measured against the same requirements.
6. Review the draft Form ETA-9089 before it is filed on FLAG. Per FLAG's release notes of 2024-02-06, question G.5 asks: "Is the employer relying solely on the experience the foreign worker gained while working for the employer, including as a contract employee to qualify him/her for the job opportunity covered by this application?" Our Form ETA-9089 walkthrough covers the rest of Section G.
7. Keep copies of the position descriptions and time records; under 20 CFR 656.20, an audit letter gives the employer 30 days to produce documentation.
8. Track the I-140 after certification. The employer files Form I-140 with USCIS; the DOL permanent labor certification page notes that a certification expires if it is not submitted to USCIS within 180 days. Your priority date is the date DOL accepted the labor certification for processing (8 CFR 204.5(d)).

On timing, DOL's FLAG processing times page showed analyst review working on January 2026 priority dates as of 2026-10-21, with an average analyst review of 303 days for August 2026 determinations. That is a dated snapshot; check the live page.

Common mistakes

• Counting years because your title changed. Same duties more than half the time means still comparable.
• Treating OPT or STEM OPT years as outside experience. Time at the same FEIN is experience with the employer, whatever your status.
• Mixing up teams and affiliates. Another team or office under the same FEIN is the same employer; a subsidiary or foreign affiliate with a different FEIN is outside this rule.
• Overstating how your time was split. The employer attests to the application, and DOL can audit it.
• Leaning on employer-paid training. Under (i)(4), it is ignored unless similar training is offered to domestic applicants.
• Forgetting the (i)(2) check. Even a requirement within your baseline fails if the employer hired others into comparable jobs with less.

Who to talk to

Your DSO handles anything tied to F-1, OPT, STEM OPT, cap-gap or SEVIS, including I-983 updates. Your employer's licensed immigration attorney handles the PERM requirements, the substantially comparable analysis and the EB-2 or EB-3 choice; that attorney usually represents the employer, and you can hire your own counsel for independent advice.

Frequently asked questions

Can I use experience from my current company for my green card?

Only in limited cases. Under 20 CFR 656.17(i)(3), in effect and unchanged as of November 1, 2026, your sponsor generally cannot require more experience than you had when it hired you, unless you gained it there in a position not substantially comparable to the PERM job or the employer shows it can no longer train a worker for the role.

What does substantially comparable mean in PERM?

Under 20 CFR 656.17(i)(5)(ii), a substantially comparable job is one requiring performance of the same job duties more than 50 percent of the time. It tests what you actually did, not your title or pay, and the employer documents it with position descriptions, time percentages, organization charts and payroll records.

Does a promotion make the new job different enough?

Only if your duties changed. A level bump or new title with mostly the same work usually leaves the roles substantially comparable, so the earlier years still cannot be required. A move where most of your time shifts to different work, such as managing people, may let the earlier role count, and the employer's immigration attorney decides that from the documents.

Does experience at an affiliate count as the same employer?

Only if it shares the sponsor's Federal Employer Identification Number (FEIN), because 20 CFR 656.17(i)(5)(i) defines the employer by FEIN. A parent, subsidiary, sister company or foreign affiliate with a different FEIN is outside the rule, while another team, office or division under the same FEIN is the same employer.

Does OPT experience at the same company count?

Not if it was in the same role. Under 20 CFR 656.17(i)(3), in effect as of November 1, 2026, OPT and STEM OPT time at your sponsor is experience gained while working for the employer, exactly like H-1B time, because the rule looks at the employer and not your visa status. So those years generally cannot be required for the PERM job unless that role was not substantially comparable.

Sources

• 20 CFR 656.17, eCFR (paragraphs (e) and (i))
• 20 CFR 656.20, audit procedures, eCFR
• 8 CFR 204.5, eCFR (paragraphs (d), (g)(1), (k)(2) and (k)(4))
• USCIS, Employment-Based Immigration: Second Preference EB-2
• USCIS, Employment-Based Immigration: Third Preference EB-3
• USCIS, Adjustment of Status Filing Charts from the Visa Bulletin
• U.S. Department of State, Visa Bulletin
• Fragomen, November 2026 Visa Bulletin summary and Ogletree, November 2026 Visa Bulletin summary
• DOL, Permanent Labor Certification
• DOL FLAG, processing times and PERM release notes, 2024-02-06
• OIRA, reviews concluded in the last 30 days (RIN 1205-AC29)

How we checked this: on 2026-11-01 we read the regulation text on the eCFR (current through 2026-10-29), the USCIS EB-2, EB-3 and filing-chart pages, DOL's FLAG pages and OIRA's review list; Visa Bulletin values are from the November 2026 bulletin as summarized by Fragomen and Ogletree (travel.state.gov blocks automated reads), and they agree with other law-firm summaries.

This is general information, not legal or tax advice; your own notices and records, your DSO and your employer's immigration attorney govern your case.

If you are on OPT, STEM OPT or H-1B and weighing where your next role, and your green card, should come from, F1Jobs helps international candidates run a focused search for employers that sponsor.