The PERM labor certification process is the first step in many employment-based permanent residence applications and requires employers to test the U.S. labor market prior to offering the position to a foreign worker. Since the onset of the COVID-19 pandemic in early 2020, PERM labor certifications have faced several new complexities that impact most stages of the process.

More than three years of a pandemic resulted in unprecedented Department of Labor (DOL) processing times for prevailing wage determinations and PERM applications; uncertain economic times continue to cause layoffs that can impact PERM applications; and the pandemic accelerated an already shifting work environment from in-office to remote work. This new normal, combined with added intricacies due to recent state and local Equal Pay Transparency (EPT) laws, further complicates the PERM process that often extends to 18 months or longer from initiation to completion.

Anticipating Challenges During the PERM Process

When launching a PERM-based green card process, planning for potential delays due to processing times and visa availability is critical. The employee’s career will progress while facing a wait—for some nationalities substantial—in various stages of the process. Considering later stages helps plan the PERM stage around an employee’s likely career progress and avoids obstacles caused by delays. Balancing treatment of foreign workers against similarly positioned employees is important to potentially avoid DOL scrutiny and application denials.

The job description for the PERM position requires foresight of potential changes to the foreign worker’s role. Minor changes may not affect a certified PERM, but significant alterations like core duty changes or work location changes might necessitate a new application. Ensuring consistency and clarity in the job description, and balancing specificity without being overly tailored, can help to avoid subsequent issues or audits. Overall, the PERM job description is foundational for the entire green card application and careful planning can minimize the impact that a job change would have on the immigration strategy for a foreign worker. Employers should consider the sponsored employee’s expected advancement in their field to ensure the PERM will remain applicable throughout the process.

Potential Impact of Layoffs on PERM Labor Certifications

Throughout 2023, some major U.S. companies executed significant layoffs that may impact the PERM labor market test. For employers filing PERM applications, laying off U.S. workers in the six months prior to filing the PERM triggers additional rules. Understanding key terms such as “layoff,” “employer,” and “U.S. worker” is crucial. Further, these layoffs may involve an intricate assessment to determine the start of the six-month period, their impact on intended employment areas, and if the laid-off U.S. worker roles align with a sponsored PERM position. The increase in remote work adds complexity because layoffs of telecommuters might affect PERM sponsorship of foreign workers in different locations.

Employers must notify and consider all potentially qualified laid-off U.S. workers in the area of intended employment who had filled the same or similar positions to the PERM job. This requires maintaining detailed records of notifications and responses to demonstrate lawful disqualifications if workers respond but lack necessary qualifications. How to define “potentially qualified” lacks clarity but should align with the employer’s good faith standards that apply throughout the PERM process. Disclosing a layoff on the PERM application Form ETA-9089 may trigger a PERM audit, so some employers may decide to wait to file an application until at least six months after any layoff. In the face of an economic downturn, employers should expect increased DOL scrutiny emphasizing the need for accurate documentation to evidence lawful reasons for rejecting a potentially qualified U.S. worker.

PERM Worksite Setups and Travel Requirements

Navigating PERM applications can grow more complex when dealing with a fully or partially remote workforce or telecommuting workers that stray from the standard corporate on-site setup. The 1994 Barbara Farmer memorandum (Farmer Memo) continues to be the applicable guidance when structuring a PERM application where the PERM job offers telecommuting or involves varied worksites. The Farmer Memo recommends using the employer’s headquarters as primary worksite in these scenarios. The PERM process centers on the effect a foreign worker permanently entering the U.S. job market would have on a particular geographic region, so the DOL may consider a role that does not lie within one specific geographic location a nontraditional employment arrangement and, in a PERM audit, may require evidence demonstrating the business necessity driving this arrangement.

How to determine what constitutes the “headquarters” still lacks clear DOL guidance. While the Farmer Memo is helpful for broad situations, such as roving or work-from-anywhere roles, it may not neatly fit region-specific telecommuting setups or the emerging trend of fully virtual workplaces. Nevertheless, the prevailing wage request, PERM recruitment, and Form 9089 must precisely outline the job’s geographic area, including any travel demands and necessary residency locations, for the job’s performance. For telecommuters, typically operating from their homes and permitted to reside anywhere in the United States, the primary worksite should be the employer’s headquarters to which the employee reports while working from home. A telecommuting employee’s home address is irrelevant to the PERM and should not be listed as a worksite. Despite the surge in telecommuting and remote work due to COVID-19, the DOL has not issued new guidance on PERM applications involving telecommuting options.

Roving employees move between different jobsites for temporary assignments, spanning from months to years. The defining feature is that there is no one specific worksite address and jobsites may or may not be anticipated. If the rover’s jobsites are known in advance, the employer can specify primary and additional worksites in the PERM application and the primary worksite should be company’s headquarters location. However, if jobsites are unpredictable, per the Farmer Memo the primary worksite should be listed at the company’s headquarters or the main reporting office, and the PERM application must reflect work across various unforeseen locations within the United States. Further, some employees travel regularly or continuously for their job and this type of travel, as any travel, must be stated in the prevailing wage determination, PERM recruitment, and Form 9089, together with the frequency and geographic location of travel.

The PERM process is for a prospective role – the role the foreign worker will assume when they become a permanent resident – and because a green card process can span many years, determining the “where and how” of the PERM role is a critical strategic step of the process.

Equal Pay Transparency (EPT) Laws

An increasing number of states and local jurisdictions have passed varying EPT laws mandating inclusion of wages or a wage range in print and electronic job postings. Certain states, including Colorado, California, and New York, have passed major EPT laws, while other laws are limited to specific cities or hinge on factors such as employer size, physical presence in the area, or the potential for remote work within the jurisdiction. Given the variety of EPT jurisdictions and rules, it is important to assess whether an EPT law applies to the employer or to the PERM position, and how to align the local or state EPT wage requirements with federal PERM regulations on prevailing wage and offered wage notice requirements.

While PERM regulations only require the Notice of Filing to list the wage or an applicable wage range, with the wage or the bottom of the wage range no lower than prevailing wage, all job postings that are part of PERM recruitment and subject to an EPT law must specify the wage and any other job information required by the EPT law. The DOL advises that an employer must comply with all applicable laws when advertising for a PERM position, including federal PERM regulations as well as any applicable state or local EPT law.

The New Normal in 2024

PERM practice has become more complex and unpredictable, especially regarding timing, recruitment content, and form completion strategy. The shift in 2023 to an updated Form 9089 via the DOL’s Foreign Labor Application Gateway system marks the most significant technological upgrade in the PERM program’s history. 2024 may reveal the extent of transitional challenges and increased efficiency and effectiveness, if any, gained by the new system as the DOL begins reviewing PERM applications filed via the updated Form 9089.