The first step along the road to 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? On this page, you will learn all about PERM portability, how you can change jobs during PERM, and what is the “same or similar” criteria.
Can I Get a PERM Labor Certification Transfer?
In general, the short answer is no, but there is an exception. There are situations where current employers would cooperate and help you work for a new employer under the original PERM, but these situations are extremely rare. On the other hand, if your I-485 is pending for more than 180 days, along with an approved I-140 and Labor Certificate – you can work for a new employer without needing to restart the process.
In some cases, this is possible 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 contract 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.
However, employers may not withdraw your I-140 in bad faith, for disciplinary measures, or do so retroactively. In those situations, employers may face liability for breach of contract or fraud for using immigration measures against their employees.
There is an exception to the rule, of course.
Portability Exception: I-485 is Pending for More than 180 Days
A foreign employee can transfer to a new employer if their Labor Certification is approved, the I-140 is approved, and I-485 has been submitted and pending for more than 180 days. In this situation, the employee can easily transfer to a new workplace without their new employer needing to file a new Labor Certification application or I-140. The new employer must detail how the job that the employee will take is the “same or similar” to the job that they originally received a labor certificate and I-140 for.
Approved I-140 and I-485 Not Pending 180 Days
If you don’t fall under the portability exception, it doesn’t necessarily mean that you have to restart from scratch. If your I-140 is approved, then you can use the priority date from that application to your new I-140 petition with your new employer. This applies in situations where you have to get a new Labor Certificate or if you don’t need one. In fact, there is no restrictions as to which preference category you will be applying in. This can save considerable time for many foreign workers as they would not have to wait for their new priority date to become current and can use their old priority date from their original I-140 application.
Can I Internally Transfer During PERM in the Same Company?
This is a popular question amongst many foreign employees working in the U.S. The answer is, yes, you can transfer within the same company. However, the process depends on many factors.
If you are planning on making an internal transfer at any point of your pre-employment or employment, you must take into consideration your new role. If your new role is the same or similar to your original offered position in your PERM, then you will not need to worry about restarting the entire process. However, if your new role is completely different, then you will likely need to obtain a new Labor Certification and start the PERM process from the beginning.
For example, if your current employer promotes you, and raises your salary, but you are still performing new same duties. Then you will likely be able to transfer without restarting the process. However, if your current employer gives you a new position that drastically differs from your original job, then chances are that you will need a new PERM application.
Meaning of “Same or Similar”
The “same or similar” assessment is crucial when making any internal transfers. What it means is essentially how closely related is your new role to your original role. The USCIS takes into consideration many factors when assessing this, for example, they might take a look at:
- The job description and duties of both positions;
- The education, skills, and experience needed to perform both jobs;
- The salary of each position; and
- Any other information that might be useful to determine the “same or similar” factor.
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 i’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 websites 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.
How VisaNation Law Group 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.
VisaNation Law Group immigration lawyers 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 a VisaNation Law Group attorney, feel free to navigate to this contact form and fill out the information to schedule a comprehensive consultation today!