Tips for Drafting the PERM Job Description
The PERM green card process is quite a time-consuming and expensive investment that requires technical review and thoughtful strategizing at the outset. The full PERM process itself before filing an I-140 petition takes months, typically at least six to eight at a minimum.
When working with my clients, we spend a good amount of time at the very beginning of the matter to confirm the job description and establish the minimum requirements for the position. In doing so, I have a few tips for employers and employees to keep in mind.
To start, it’s really important to remember that the PERM positon is technically considered to be a future position the employee will take on when the green card is issued. It could be the same position the applicant currently has, but it doesn’t have to be. We then want to ask, “Well, how long will it take for the employee to get that green card?” This answer will depend on the applicant’s country of birth and whether they’re subject to a backlog. Some candidates will be eligible to file an Adjustment of Status application right away, while others – particularly Chinese and Indian nationals – might have to wait at least 5, 8, maybe even 10 years before they can expect the green card. This is important, because if information noted on the PERM is vastly different from the position the employee holds when an Adjustment of Status application is filed, that can be problematic.
On the PERM, the employer must confirm the job title, duties, worksite location, and salary for the position. The PERM, when certified, will only be valid for the worksite location listed, so if there is a change in this, a new PERM would likely be required. Employers should keep this in mind for any office change locations or thoughts to relocate the applicant’s position. Promotions or pay raises that occur during PERM preparation and pre-filing can also undermine a PERM application; pay changes afterwards don’t tend to be problematic. Changes to job duties and job title don’t necessarily invalidate an approved PERM so long as they are part of the applicant’s natural career progression and generally within the same occupational category for which the PERM was approved. However, if an employer anticipates increased responsibilities for the applicant in the near future before the green card is issued, it would be wise to include some of these duties in the PERM itself. Note that if the applicant moves from the PERM job, like a Mechanical Engineer, to a different occupational category like that of a Sales Engineer, a new PERM would be required.
Establishing the employer’s absolute minimum job requirements and special skills is an important part of the case strategy. It’s imperative to identify only quantifiable and objective skills and requirements required for the position. Subjective criteria and unmeasurable preferences in a PERM case won’t make the cut for a successful case.
It’s important to hash out these details upfront, as everything needs to be consistent throughout the PERM case. This includes details on the prevailing wage request, recruitment, the internal notice of filing, and the PERM itself.
Here at Berardi Immigration Law, we are thorough in working through these details, and even more importantly, very experienced with these cases. Give us a call today to work on you or your employee’s PERM green card case. I promise you’ll be glad you did!