June 27, 2017

June 26, 2017

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Five Key Considerations When Initiating PERM Labor Certification for Your Employee

For most employers, sponsoring a foreign national employee for an employment-based green card requires filing a Program Electronic Review Management (PERM) labor certification with the U.S. Department of Labor (DOL). In simple terms, an employer’s successful PERM labor certification demonstrates to the DOL that (1) the employer intends to pay the appropriate prevailing wage for the position in the geographical area, and (2) hiring a foreign national worker to fill the position will not adversely impact the U.S. labor market by displacing U.S. workers. Despite the seemingly intuitive nature of these two goals, the PERM labor certification process is anything but intuitive. In reality, the PERM process involves a set of technical, expensive, and highly time-consuming steps in combination with strict deadlines and complex strategies that extend over a period of typically six to eight months and, once approved, must remain effective well into the future.

As an initial matter, be aware that the employer must take on all the costs of the PERM process, which include legal fees and advertising costs. The DOL precludes employees from taking on any of the financial burden of a PERM application. Given the intense time and financial commitment required to successfully complete this first step of the green card process, employers must take time to understand key aspects of PERM regulations prior to commencing the arduous labor certification process. This article highlights for employers five crucial considerations. The timely and efficient success of an employee’s green card application depends on an employer’s understanding of these essential aspects of PERM regulations.

1. Ensure the PERM labor certification will continue to be valid when the foreign national employee receives his or her green card, which could be many years from now.

An employer commencing the PERM labor certification process for an employee may find it useful to take a step back to visualize the ultimate expectation of the long process: The foreign national employee must perform the position, as set forth in the PERM labor certification, at the time the green card application is approved. Importantly, the time frame for certification varies greatly depending on the employee’s country of birth and the type of position he or she will perform.

As background, on the PERM form (i.e., the Application for Permanent Employer Certification or ETA Form 9089), an employer must detail the job title, job duties, minimum requirements, worksite location, and salary for an offered position. A delicate dance ensues—the employer must establish the details of the employee’s anticipated position, encompassing potential future changes to the role and the estimated time frame for green card issuance. The U.S. Department of State’s Visa Bulletin, which changes on a monthly basis, allows legal counsel to determine approximate backlogs for green card issuance, which can vary greatly. As an example, for two employees whose countries of origin are India and Ghana, respectively, who perform work in the same advanced position, the Indian national will need to wait seven to nine years for green card issuance as compared to the employee born in Ghana, who will be eligible to move forward with a green card application immediately once the PERM application is certified.

How can a PERM labor certification continue to be valid years into the future with such extensive backlogs? Certainly, the PERM remains valid only for the “area of intended employment” specified in the labor certification, so an employee’s relocation to a worksite outside the original area of intended employment will require a new PERM application. A change in job title or other ancillary, non-material changes do not, by themselves, impact the continuing validity of a PERM labor certification. Likewise, wage raises that occur with the passage of time after the PERM is filed do not impact the PERM’s continuing validity.

The key factor in determining if a change in job duties will require a new PERM application is whether the foreign national employee is performing substantially all of the same duties listed in the PERM labor certification. Job duties that are tied to the requirements for the position are examined more closely. For example, if a duty that was the basis for the position’s experience requirements is eliminated, the new job will be considered different and a new PERM will be required. Also, if significant managerial duties are added in the new position, a new PERM will be required. An addition of minor duties will not generally affect the validity of the PERM. For a high-performing employee from India who continues to be promoted while awaiting certification, the filing of a new PERM application might be inevitable.

Because a change in the duties, worksite, or other important details of a position can trigger the need for a new PERM application, a helpful practice is to set forth the details of the position on ETA Form 9089 such that the employee can progress naturally through the ranks of the company and still perform substantially the same role as the PERM position once a green card is issued. If the employer comprehends this key consideration, the business will be better positioned to save time and money and manage the expectations of foreign national employees.

2. Be sure you can prove the ability to pay the offered, full-time salary from the date the PERM is filed until the employee obtains lawful permanent resident status.

For profitable, large companies with 100 or more employees, demonstrating the “ability to pay” the offered wage is generally quite simple. For small employers, however, that might operate at a loss for one year, it is essential to consider proper “ability to pay” evidence at the beginning of the PERM process. As background, the employer must list the employee’s offered wage at Section G on ETA Form 9089, which must equate to at least the DOL-determined prevailing wage for the position. Importantly, the employer’s duty to demonstrate its “ability to pay” the wage begins as soon as the PERM application is filed and continues until the green card is approved. As a practical matter, intense scrutiny of the employer’s “ability to pay” arises when U.S. Citizenship and Immigration Services (USCIS) adjudicates the employer’s I-140 petition, which is the next step of the green card process after the PERM is certified.

For all employers, the most straightforward way to demonstrate an ability to pay the offered wage is to simply pay the employee the offered wage or higher, as evidenced through W-2s and/or pay statements that are effective from the moment the PERM is filed. If the employer will not pay the offered salary from the PERM filing date forward, alternate documentation will be required. Generally, a large employer with 100 or more employees can evidence its ability to pay the wage through an annual report, U.S. Securities and Exchange Commission (SEC) Form 10-K, federal tax returns, audited financial statements, or a letter signed by the chief financial officer—all of which must reflect sufficient profits to pay the wage. 

3. Stay vigilant regarding layoffs to U.S. workers, which can impede an employer’s ability to file a PERM.

If an employer has performed any layoffs within the last four to six months or plans to commence layoffs in the next six months, it could pose serious problems for the PERM labor certification.

For a layoff to affect a PERM, the layoff must have occurred in the same area of intended employment as the PERM position and be in an occupation that is “related” to the PERM position. Furthermore, the laid-off employee must be a “U.S. worker” (namely, a U.S. citizen), lawful permanent resident (green card-holder), or an asylee/refugee. In order to move forward with a PERM where a layoff occurred affecting a U.S. worker in a related occupation in the area of intended employment within six months of the filing of the PERM application, the employer must provide documentation that it has notified all of the potentially qualified laid-off U.S. workers of the job opportunity and considered them. This complex and time-consuming analysis can be avoided if the employer is keenly aware of its layoff history and performs the analysis prior to initiating the PERM and commencing a costly recruitment campaign.

4. Changes to the PERM position, such as promotions, salary raises, or new locations, can destroy a pre-filed PERM, requiring the employer to start the whole process over again.

It is important that the job duties, worksite, offered wage, and other details of the position remain consistent throughout the PERM labor certification process—from the prevailing wage determination on ETA Form 9141, to recruitment language, to ETA Form 9089. Just as changes to the PERM position that occur after the ETA Form 9089 is filed can impact the continued validity of the PERM, changes such as promotions or raises that occur during PERM preparation and pre-filing can also undermine a PERM application.

For example, if a PERM lists a position as “Environmental Engineer I” with an offered wage of $70,000 per year and the employer decides, prior to the filing of the PERM application, to promote the employee to an “Environmental Engineer II” role at an annual salary of $80,000, it could be argued that the offered wage, as advertised, is no longer valid at the time of filing. Despite the fact that the employer had the employee’s best interests at heart, the PERM position was advertised at a lower wage than the wage in effect at the time the PERM was filed. One could argue that the $70,000 annual wage might have discouraged U.S. workers from applying, whereas the higher offered wage for the position—in effect prior to the PERM’s filing—might have encouraged more resumes from U.S. applicants. This is a grey area of PERM compliance, but employers may be on more solid footing if they refrain from changing important details of the position throughout the PERM filing process.

5. If qualified U.S. workers apply for the PERM position, the entire process must halt.

The purpose of the PERM labor certification process is to ensure that there are no U.S. workers who are able, willing, qualified, and available to perform the work to be undertaken by the foreign national employee and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. As such, the employer must embark upon the PERM process in good faith, acknowledging that it will review the resumes of all applicants who apply for a position as a result of the DOL’s regulated recruitment campaign. If there are minimally qualified U.S. workers who would accept the position if it were offered to them, the PERM process cannot be continued. However, a new PERM process can be completely restarted after a six-month waiting period.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Anna F. Angel, Ogletree Deakins, Denver, Visa Applications Lawyer, business immigration matters attorney
Associate

Anna Angel joined the Denver office of Ogletree Deakins in July 2015 as a member of the immigration practice group. Prior to joining Ogletree Deakins, Ms. Angel worked for several years as an immigration attorney in upstate New York.

Ms. Angel’s practice focuses on business immigration matters, representing companies and individuals in the high-tech, medical, and academic fields.  She represents clients pursuing both employer-sponsored immigrant and non-immigrant visas, as well as self-petitioning clients, such as individuals filing...

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