If you are ever in a situation where you want to bring a foreign national on board at your company, then you will likely need to go through what is known as a Program Electronic Review Management (PERM) labor certification process. PERM deals with more than just recruitment ads and is actually an entire complex process that has your company working closely within the guidelines set out by the Department of Labor (DOL).
What this process is in place for is to ensure that the employer will be willing and able to pay the foreign national employee a fair wage that coincides with the standards set by other similar industries within the same area. It strives to make sure that no qualified American citizens will be denied the position if they are willing and able to complete the job in place of a foreign national worker.
This process involves so many steps, with many of them being very involved and technical, that the entire process can take anywhere from six to eight months. So before you launch into this important process that is the first step in getting your employee a work-related green card, there are a few vital things to consider.
It Has to Remain Valid for Years to Come
It is important to remember that the PERM process is not something that only takes a couple of months and then becomes unimportant. The entire process has to remain valid until the foreign national’s green card is officially issued, which could potentially take years, depending on the specific circumstances surrounding that foreign employee.
Keeping PERM labor certification valid for so long is something that actually sounds harder than it is. The important thing is that you have to know what you can get away with in terms of job changes for the foreign national before you reach the point where you need to start the process all over again. A change in the employee’s job title, wages, or any other superficial differences that occur should not impact the state of the original application.
One thing that likely will impact the state of the application is any significant differences in the job duties of the position that they were originally hired for. If at any point they begin a new job, even one within the same company, then they will likely have to begin a new PERM application and go through the whole submission of their immigration labor advertising process again, assuming that the new job has an extremely different set of roles and responsibilities. The actual job title does not even need to have gone through a change for this rule to apply. Even if one of the fundamental tasks of the original job posting gets eliminated from the role, then it will likely require a new application.
One way to help prevent your company from needing to go through the arduous process all over again is to include some range of roles and responsibilities in the original application. If you keep it to such a specific list of tasks that only one exact role would fit the majority of them, then it is very likely that if the foreign national ever change job positions even slightly then they will probably no longer fit into the description.
Make Sure That You Can Pay the Salary
This is a step that applies more to smaller companies than it does to larger ones. Whereas large companies have a fairly large operation that draws in a lot of profit, smaller ones do not bring in nearly as much money.
When beginning the original application process, you will need to include information about the employee’s set wage, which is determined based off of the prevailing wage that the DOL sets. You not only need to demonstrate that you can pay it immediately but for a long term period as well. Since getting a green card can take years, your company will need to be able to show that you are in a financial position to keep paying the agreed upon wage for a long period of time.
Any U.S. Applicants Could Stop the Process
One of the whole points of the PERM process and the strict guidelines surrounding immigration advertising is to help ensure that no foreign nationals take a job that any qualified and willing American worker could do. So it makes sense that whenever a U.S. worker who meets these criteria applies to the position, the process of hiring a foreign national must come to a halt. That new candidate must then be thoroughly considered and put through the review and interview process to determine whether they will be an acceptable fit for the position or not.
Layoffs Can Ruin the Process
Layoffs are a devastating thing to employees and companies even during ordinary situations, but when it comes to their PERM application it makes it even worse. If a company had any layoffs occur within four to six months of filing the application or plans to perform any layoffs within the first six months of the application submission, then they could find themselves thrust into some hot water regarding their application.
If the layoff that took place happened to occur from the exact same or similar area that the position is in which the company is looking to hire a foreign national then it might prove to be trouble. This is, of course, assuming that the employee that was laid off was either an American worker or lawful permanent resident. If this happens then the company must go through the required steps of notifying and properly considering the employees that were laid off for the position before choosing a foreign national. As long as the employer makes sure to take these steps then they should not run into any issues regarding their application.
