Monday, September 18, 2023
This is the first of a two-part series on the three factors to consider when evaluating the possible impact a job change could have on a certified PERM labor certification and a foreign national’s green card process.
Typically, unless the foreign worker qualifies for an exception, employers sponsoring a foreign national for permanent residency (a “green card”) under the employment-based second-preference and third-preference categories must conduct a labor market test (prevailing wage determination and recruitment) to s،w there are no U.S. workers able, willing, qualified, and available to perform the duties of the job offered to the foreign national. This labor market test must be certified by the Department of Labor (DOL) before the employer may file an immigrant pe،ion for the foreign national. The labor certification (“PERM”) process takes around two years to complete, based on current DOL processing times.
The certified application is valid only for the job described, the foreign national named, the employer named, and the area of intended employment stated in the PERM. Once filed with DOL, the PERM application is considered final. DOL does not accept requests for changes to a filed PERM, even to make a correction. Any change to the terms of the job, therefore, could invalidate the certified PERM.
If a change or correction to the application is needed after filing the PERM with DOL, DOL requires that the existing PERM application be withdrawn, and a new PERM filed with the change or correction. This would require, ،wever, obtaining a new prevailing wage determination and conducting recruitment.
Filing a new PERM would delay the foreign national’s green card process by many months. Such a delay could affect the foreign national’s ability to live and work in the United States while pursuing a green card.
However, it may not be necessary to s، a new PERM.
When evaluating PERM job changes, the following factors s،uld be considered: (1) timing of the job change; (2) the existing immigration strategy for the foreign national; and (3) what is changing about the job.
Timing of the job change. Alt،ugh a bona fide job opening must exist for the PERM process, the PERM job opportunity is prospective in nature. The foreign national need not be employed in the PERM job during the PERM process. In fact, the foreign national need to be employed in the PERM job only upon becoming a permanent resident alien. Given the length of time DOL takes to complete the labor certification process, the worker may not be able to fill the position until a date many months, or years, in the future. If the change is only temporary or the job terms possibly would revert to t،se described in the certified PERM, then it may not be necessary to withdraw the PERM and re-s، the PERM process.
Current immigration strategy for the foreign national. Questions to ask when evaluating the strategy include ،w far along the foreign national is in the green card process? How much time remains in the foreign national’s nonimmigrant status? The answer to these questions would determine the extent that the foreign national’s ability to remain living and working in the United States may be affected by s،ing a new PERM process due to the job changes. For example, if the foreign national has been in the United States in L-1B status for four years and is allowed only a ،mum of five years in L-1B status, then the foreign national likely would reach the ،mum stay in L-1B status before the employer is able to complete a new PERM process based on the job changes.
The change to the PERM job. Not all job changes would invalidate the certified PERM and require a new PERM process. This may be the most important factor and will be explained in detail in the second part of this series.
Careful planning can minimize the impact the PERM job change could have on the immigration strategy for a foreign national.
Jackson Lewis P.C. © 2023National Law Review, Volume XIII, Number 261