What If I Want to Promote an Employee During the PERM Process?

If a U.S. company wants to sponsor a foreign worker for a green card through the PERM process, the company will need to go through multiple steps, such as obtaining a prevailing wage determination from the U.S. Department of Labor, conducting a test of the U.S. labor market and filing a Labor Certification (ETA 9089) with the Department of Labor, attesting that the company could not find any willing, qualified and available U.S. workers for the position. Once the Department of Labor certifies ETA 9089, the company can file Form I-140 for the employee and then, if a green card is available in their category, the employee can apply for the green card through adjustment of status or consular processing.

As the PERM process can take several months, up to and over a year, a common question is whether the employee’s job can change during that time.

Changes in the job duties, geographical location, and salary will impact the PERM process and could affect the viability of the application, so employers should consider the timing of promotions, location transfers and raises before initiating the PERM process and should consult with immigration counsel before making any of these changes to the employee’s role during the PERM process. When the employer is drafting the job description that will be used for the PERM process, they should consider what role they expect the employee to fill one to two years in the future, as the PERM application is for a prospective position. This can help to avoid issues that would require repeating steps in the process.

For example, if an employer promotes an employee to a role with substantially different job duties and a higher salary rate while the prevailing wage request is in process, the employer will have to submit a new prevailing wage request to the Department of Labor. Issues can also arise if the employee is transferred to a new work location, since the PERM is location specific. For example, if the employer has completed the labor market test and filed the Labor Certification (ETA 9089) for a position in Dallas, Texas and then the employee is transferred to Miami, Florida, the employer would have to start a new PERM process for this employee.

If an employee is going through the PERM process it is very important to discuss planned changes to the job with immigration counsel before making those changes, to ensure that it does not negatively impact the process or require the employer to redo any parts of the process.