This is the second of the two-part series Navigating Changes to a Job Post-PERM Certification, which evaluates the impact a job change may have on an approved, certified PERM and during a foreign national’s green card process.
As explained in Part 1, there are circumstances where it may not be necessary to start a new PERM application based on job changes. The following discusses examples of issues that may arise during or after a PERM labor certification has been approved and whether it may be necessary to start a new PERM application based on the changes.
Termination of foreign national’s employment. A certified PERM is valid only for the foreign national named in the application. Generally, terminating the foreign national’s employment would render the PERM invalid. There are, however, a couple of exceptions.
One exception is if the foreign national has an adjustment-of-status application filed with U.S. Citizenship and Immigration Services (USCIS) that has been pending for more than 180 days. In this situation, the foreign national may be eligible to transfer (or “port”) to a qualifying new job. The new job must be in the same or similar occupation classification as the original job that was the basis of the immigrant petition.
Another exception is for professional athletes and allows the athlete to continue the permanent residency process after changing teams. The new employer must be a team in the same sport as the team that filed the original, certified PERM.
In either of these situations, terminating the employment relationship with the foreign national would not invalidate the certified PERM. The foreign national’s new employer should not need to start a new PERM application; the foreign national should be able to complete the permanent residency process based on the original, certified PERM.
Employer name change. A certified PERM is valid only for the employer named in the application. While a company name change would result in a different name than the one listed in the certified PERM, the name change should not invalidate the certified PERM. The Department of Labor (DOL) considers the Federal Employer Identification Number (FEIN) to determine whether the change affects the validity of the certified PERM. If the FEIN remains the same after the name change, then there should be no impact on the validity of the original, certified PERM.
Employer ownership change. As mentioned above, the certified PERM is valid only for the employer to which it is issued. A corporate ownership change, such as an acquisition or merger, would invalidate the PERM, because the employer named in the original, certified PERM no longer exists. Since the original employer no longer exists, the job opportunity described in the certified PERM no longer exists. When the company ownership changes, therefore, the new or reorganized company would need to start a new PERM application.
However, if the new or reorganized company can show it is the “successor-in-interest” of the original company, then it may continue the permanent residency process based on the original company’s certified PERM. The new or reorganized company documents the transfer and assumption of ownership and shows the terms of the PERM job offer have not changed.
Employee’s worksite changes. The certified PERM is location-specific. Rather than specific to the physical address of the work location, the certified PERM is specific to the “area of intended employment” of the PERM job opportunity. The DOL defines an “area of intended employment” as the normal commuting distance from the place of intended employment.
There is no rigid measure of distance that would qualify as a “normal” commuting distance. The rule of thumb is that if the place of employment is within a Metropolitan Statistical Area (MSA), then any place within the MSA is within a normal commuting distance of the place of employment. However, the DOL does not consider the borders of an MSA to be absolute; a location outside an MSA may still be within a normal commuting distance even if it is not within the same MSA.
Determining if a move to a new location is within the area of intended employment is fact-specific. When the foreign national’s worksite moves to a new location, it would be necessary to evaluate the distance between the addresses to determine whether the new location is within the normal commuting distance from the original worksite. If so, then the move should not invalidate the certified PERM. If the move is to a location not within normal commuting distance, then a new PERM would be needed because the job is in a different area of intended employment.
What if the PERM job includes telecommuting, unanticipated worksites, or a work-from-home option? For these types of jobs, the DOL instructs that the PERM job opportunity should be based on the company’s headquarters, rather than the worker’s specific worksite. In this case, the foreign national’s location change should not invalidate the PERM, as a job relocation is considered inherent with jobs that involve telecommuting, unanticipated worksites, or a work-from-home option.
Eliminating work-from-home. During the COVID-19 pandemic, many employers began requiring employees to work from home due to government stay-at-home orders. During the beginning of the work-from-home era, many employers envisioned that remote work would be permanent. In 2022, however, there was a clear shift away from remote work, and employers began requiring workers to return to the office, at least for a part of the time. In a 2023 report from the U.S. Bureau of Labor Statistics, 72.5 percent of businesses reported that they had little to no remote work in 2022, compared to 60.1 percent in 2021. As more companies shift away from remote work, the work-from-home era appears to be over.
If the PERM job included telecommuting or work-from-home, but the employer subsequently eliminates telecommuting, would that affect the validity of the certified PERM? As explained above, the DOL considers jobs involving telecommuting to inherently include the possibility of a relocation. Based on the current guidance, eliminating work-from-home and requiring in-person work is akin to an unanticipated worksite or relocation. On that basis, eliminating work-from-home would not affect the validity of the certified PERM and it should not be necessary to start a new PERM application.
Job promotion. Since a certified PERM is job-specific, a substantial change in job duties affects the validity of the certified PERM. While a change in job title or duties would not automatically invalidate the certified PERM, substantial changes to a PERM job would result in a different job position than the one for which certification was issued.
Neither the DOL nor USCIS has issued clear guidance on what would constitute substantial changes that would invalidate the certified PERM. Some attorneys apply the same or similar occupational classification standard used for job porting. Other attorneys utilize a substantially similar standard, where a side-by-side comparison of the job duties is conducted to confirm whether the job duties are at least 50 percent similar.
Further, as described above, if the foreign national has an adjustment-of-status application filed with USCIS that has been pending for more than 180 days, then the foreign national may be eligible to transfer (or “port”) to a new job that is in the same or similar occupation classification as the original job.
Careful planning is needed to minimize the impact the PERM job change would have on the immigration strategy for the foreign national. Please contact a Jackson Lewis attorney if you have any questions.