
When Should You Submit a New Permanent Labor Certification (PERM) Application?
In certain situations, a new permanent labor certification (PERM) application will be necessary alongside a change in job status. However, there are instances when a new PERM application may not be necessary.
Termination of the Foreign National’s Employment
Generally, terminating the foreign national’s employment would invalidate the PERM. However, there are two exceptions:
- Pending adjustment of status
- Professional athlete
Pending Adjustment of Status
If the foreign national has an adjustment of status application pending with U.S. Citizenship and Immigration Services (USCIS) for more than 180 days, they may be eligible to transfer (or “port”) to a qualifying new job within the same or similar occupational classification as the original job.
Professional Athlete
For professional athletes, changing teams does not invalidate the certified PERM, provided the new team is in the same sport as the original employer.
In these cases, the new employer does not need to start a new PERM application; the foreign national can continue the permanent residency process based on the original certified PERM.
Employer Name Change
A certified PERM is valid for the employer named in the application. A change in the company name alone does not invalidate the certified PERM if the Federal Employer Identification Number (FEIN) remains unchanged, ensuring the certified PERM’s validity.
Employer Ownership Change
The certified PERM is valid only for the employer it was issued to. A change in corporate ownership, such as an acquisition or merger, generally invalidates the PERM because the original employer no longer exists. However, if the new or reorganized company can demonstrate it is the “successor-in-interest” of the original company, it may continue the permanent residency process based on the original certified PERM by documenting the transfer and assumption of ownership and showing the job offer’s terms have not changed.
Employee’s Worksite Changes
The certified PERM is location-specific, referring to the “area of intended employment.” The Department of Labor (DOL) defines this as the normal commuting distance from the place of intended employment. Determining if a move is within this area is fact-specific. If the move is within the normal commuting distance, the certified PERM remains valid. Otherwise, a new PERM application is required.
Eliminating Work-From-Home
During the COVID-19 pandemic, remote work became widespread. However, as more companies shift back to in-person work, the question arises whether eliminating telecommuting affects the certified PERM’s validity. The DOL views jobs involving telecommuting as inherently including the possibility of relocation. Therefore, eliminating work-from-home does not affect the PERM’s validity, and a new PERM application is not necessary.
Job Promotion
Since a certified PERM is job-specific, significant changes in job duties can affect its validity. While a change in job title or duties does not automatically invalidate the PERM, substantial changes to the job position do. Clear guidance from the DOL or USCIS on what constitutes substantial changes is lacking. Some attorneys use the same or similar occupational classification standard as for job porting, while others apply a substantially similar standard, comparing job duties to ensure at least 50% similarity.
Heckler Law Group is ready to guide you through the detailed nature of PERM labor certification to ensure a smooth process. Get started by requesting a free case evaluation, and our team will contact you promptly.
This post is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this post without seeking the advice of a licensed immigration attorney.