The first step along the road to a most employment-based green cards is to get a PERM Labor Certification. However, throughout the immigration process, other offers may arise that work better for your situation. This is why we often get the question: can I get a PERM Labor Certification transfer and change my job during the process? Keep reading to find out the answer.
What is the PERM Labor Certification?
The Program Electronic Review Management process, or PERM process, is a way for the Department of Labor (DOL) to keep tabs on which legal permanent residents are working in the U.S. Through this process, the DOL will determine who you will work for, where you will work, and how much money you will make.
The ultimate goal of the PERM is to help make sure that the immigration system is not being abused to allow cheap foreign labor to displace American workers. Fortunately, actually filing for the PERM is free. However, this process is complex and particular to the employer, making it difficult to change jobs and get a PERM Labor Certification transfer.
The filing process for a PERM varies depending on whether or not the job you will be performing is a professional job. A professional job is simply an occupation that requires at least a bachelor’s degree (or it’s equivalent. Speak with your immigration attorney to find out if you qualify).
For both professional and non-professional jobs, the first step to getting a PERM is for your employer to determine the prevailing wage. This is determined by filing a request with the DOL to analyze the area in which you will be working and the salaries of people who are employed in similar positions. The prevailing wage will be the minimum amount that your employer can pay you as wages.
Once you have your prevailing wage, your employer will need to run ads for your job to see if any qualified U.S. workers are available. This involves placing a job order with your State Workforce Agency that runs for at least 30 days and placing an ad in the Sunday prints of the most widely circulated newspaper in your area for 2 separate weeks.
For professional jobs, your employer will also need to run ads using three of these ten recruitment methods
- Employer’s own website
- Radio and/or television
- On-campus recruiting
- Campus placement offices
- Trade or professional organization
- Private employment firms
- Job fairs
- Employee referral program with incentives such as a bonus or vacation time
- Job search website other than your employer’s (monster.com, indeed.com etc.)
- Local and ethnic newspapers
All applicants that respond to the ad must be evaluated and, if necessary, interviewed with the full intention of releasing the job to any U.S. worker who is qualified.
It is important to note that these additional recruitment methods are not necessary for non-professional jobs. Your employer will only need to place the job order and the newspaper ads.
Once thirty days have passed after the end of the job order, your employer will be able to file an ETA-9089 Labor Certification Application with the DOL. This can take up to six months to process.
What About Auditing?
There is always the chance that your case will be audited, which could add several months to the overall processing time. The DOL conducts two kinds of audits: random and targeted. The random audits are just that, random. They cannot be anticipated or avoided.
However, the target ones are audits that can be triggered by one of several issues with your application. These issues can range everywhere from simple inconsistencies and missing information to an unsatisfactory recruitment record and suspicion of fraud or nepotism (family bias).
The best way to avoid a targeted audit is to hire an immigration attorney who will guide you through the recruitment process and make sure that all of your reports are consistent, complete, and accurate so that your case does not arouse the suspicions of the DOL.
If your employer has been given a notice for an audit, they must respond even if they decide to withdraw your PERM application.
Can I Get a PERM Labor Certification Transfer?
So now that we understand how involved the process is, we can determine whether or not it would be feasible to execute a PERM Labor Certification transfer and change jobs during the PERM process.
The short answer, unfortunately, is no. The only scenario in which this is possible is if your previous employer elects, out of the goodness of his or her heart or for some other motive, to continue with the PERM process after you have accepted a job offer for a different company.
Realistically speaking, however, your initial sponsoring employer will likely withdraw your PERM request as soon as you start pursuing a different job. When this happens, you will need to go through the PERM process from the beginning. This is because the PERM is not tied to you, it is tied to your job. Therefore, if you change jobs during the PERM process, you will need a new PERM for your new job.
For example, if an applicant began the PERM process for Company A and now wants to work for Company B, the applicant would need a new PERM. However, if working for Company B is only temporary and the real permanent employment will be with Company A, the applicant might be able to work out a contact to have Company A go through with the PERM process. This would be an extremely rare case and would definitely require the help of a highly-skilled immigration attorney.
This same principle applies to any green card employment transfers. If you would like to change jobs once your I-140 is filed or your green card, you will need to go through the PERM process again. This is true for all transfers including porting from one green card to the other.
How Our Attorneys Can Help
Whether you’re just starting the process from the beginning or attempting a PERM Labor Certification transfer, an immigration attorney will be invaluable to your case. From helping your employer go through the recruitment process and dealing with an audit to filing the petition for a green card, an experienced lawyer can help you and your employer avoid the common pitfalls that come with obtaining an employment-based green card.
Our immigration lawyers here at SGM Law Group have specialized in employment-based immigration for years. We have helped hundreds of clients find employment in the U.S. If you have a difficult immigration case, you can be sure that it’s in the right hands.
To get in touch with one of our attorneys, feel free to navigate to this contact form and fill out the information to schedule a comprehensive consultation today!