Navigating Employee Job Transfers during the PERM Process: Employer Guidance

Understanding the PERM Process and Internal Job Changes

When an employee expresses the desire to change roles within a company, the PERM (Program Electronic Review Management) process can become a critical consideration for both employers and immigrant workers. The PERM process is a crucial step for foreign nationals seeking permanent residency in the United States through employment. It involves rigorous labor certification to ensure that hiring the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Employer Guidance on Employee Role Change During PERM

If an employee involved in an ongoing PERM process wants to switch jobs or roles within the company, employers must navigate the situation cautiously. Here’s a step-by-step guide to handle such scenarios:

Assess the Impact on the PERM Application

1. Evaluate the new position: Determine if the new role is materially different from the one specified in the labor certification application. The Department of Labor (DOL) defines a material change as one that alters the job duties, skills, or qualifications significantly.
2. Seek legal advice: Consult with an immigration attorney to understand the implications of the role change on the PERM application.

Discuss Options with the Employee

• Explain the situation: Clearly communicate the potential risks and consequences of a job change during the PERM process.
• Consider timing: If the PERM application has already been approved, the employee is generally free to move to another position within the company. However, if the application is still pending, a role change could result in starting over the PERM process.

If Changing Roles is Inevitable

• Withdraw and restart the PERM application: If the employee moves to a substantially different role, the employer will likely need to withdraw the current PERM application and initiate a new one.
• Amend the application, if possible: For minor changes not considered material, it might be possible to amend the existing application with the DOL.

Handling the Complexity of the PERM Process

The PERM process is complex and should be navigated with the guidance of an experienced immigration attorney. Employers must understand that:

• An internal job transfer can necessitate starting a new PERM process due to the specific nature of job duties and requirements outlined in the original application.
• The objective of the PERM process is to protect the U.S. labor market, and any changes in employment conditions are scrutinized.

Staying Compliant with Immigration Laws

It’s important for employers to maintain compliance with immigration laws at all steps of the PERM process. Keeping detailed records of job descriptions, duties, and the recruitment process is vital.

For official guidance and resources, employers can refer to the U.S. Department of Labor’s website and the U.S. Citizenship and Immigration Services (USCIS) website.

Conclusion

When dealing with an internal job transfer or an employee role change during the PERM process, employers must proceed with caution and seek legal advice. It’s critical to understand the nuances of the PERM application to avoid unnecessary complications and to ensure the seamless progression of an employee’s immigration journey and the employer’s compliance with U.S. labor regulations.

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FAQ’s to know:

FAQ 1: Can an employee change roles within a company during the PERM process?
Yes, an employee can change roles within a company during the PERM process. However, employers need to assess the impact of the role change on the PERM application. If the new role is materially different from the one specified in the labor certification application, the employer may need to withdraw the current application and start a new one. Seeking legal advice from an immigration attorney is recommended in such cases.

FAQ 2: Can an employee change roles after the PERM application has been approved?
Yes, an employee can generally change roles within a company after the PERM application has been approved. Once the PERM application is approved, the employee is typically free to move to another position within the company without affecting their permanent residency process. However, it is important to consider the timing of the role change. If the PERM application is still pending, a role change could result in starting the PERM process again.

FAQ 3: How can employers stay compliant with immigration laws during the PERM process?
Employers can stay compliant with immigration laws during the PERM process by keeping detailed records of job descriptions, duties, and the recruitment process. Maintaining accurate and organized documentation is crucial to demonstrate compliance with labor regulations and to provide evidence of non-adverse effects on U.S. workers. For official guidance and resources, employers can refer to the U.S. Department of Labor’s website and the U.S. Citizenship and Immigration Services (USCIS) website.

What did you learn? Answer below to know:

1. True or False: Changing job roles within a company can impact the PERM application process.
2. What is considered a material change in the PERM process?
   a) A change in job duties
   b) A change in skills
   c) A change in qualifications
   d) All of the above
3. When is an employer generally free to change an employee’s role within the company during the PERM process?
   a) After the PERM application has been approved
   b) Before the PERM application has been submitted
   c) During the PERM application review
   d) Only if the employee agrees to restart the PERM process