Employer-Sponsored Immigration and PERM Labor Certification

How PERM-based sponsorship works, in general terms

Most standard employment-based green card categories, including EB-2 and EB-3, require the employer to complete a labor certification process through the Department of Labor before filing the immigrant petition. The process is designed to confirm that hiring the foreign worker will not adversely affect wages and working conditions for similarly employed U.S. workers, and that no qualified, willing U.S. worker is available for the position.

The process generally involves obtaining a prevailing wage determination, conducting a defined recruitment effort for the position and then filing the labor certification application, followed by the immigrant petition itself once certification is obtained. Each stage has its own procedural requirements and timing, which changes periodically, so current Department of Labor and USCIS guidance should be confirmed for any specific matter.

Employer obligations that come with sponsorship

Sponsoring an employee for permanent residence is a genuine commitment, not a formality. The employer is attesting to specific facts about the position, the recruitment process and its intent and ability to employ the individual and those attestations carry consequences.

• Maintaining the job opportunity as bona fide, with accurate job requirements that reflect actual business need rather than requirements tailored to exclude available U.S. workers.
• Conducting recruitment in good faith and retaining documentation of the process, since the record must be able to withstand later government audit.
• Continuing to offer the position, at the offered wage, at the time the green card is ultimately issued, in substantially the terms represented in the filing.
• Understanding that certain costs associated with the labor certification process are generally the employer's responsibility rather than the employee's.

When corporate events intersect with sponsorship

Layoffs, restructurings, mergers and changes in ownership can each affect a pending or completed sponsorship, sometimes in ways that are not obvious from the corporate side alone. A reduction in force that touches the sponsored position, a change in reporting structure, or a successor-in-interest question following an acquisition can all raise issues under the sponsorship filings.

This is precisely where immigration counsel and corporate counsel need to be working from the same information. A transaction structured without input from immigration counsel can inadvertently create risk for pending sponsorships; conversely, immigration filings drafted without visibility into planned corporate changes can quickly become inaccurate.

Portability and job changes during the process

Employees in the sponsorship pipeline sometimes need or want to change roles, employers, or job duties before the process concludes. Depending on the stage reached and the category involved, some flexibility may exist, but it depends heavily on timing and the specifics of the pending filing and acting without confirming the impact first can jeopardize the sponsorship.

Coordinating sponsorship with the company's broader legal team

Employer sponsorship sits at the intersection of immigration law, employment law and corporate law. Effective coordination generally means immigration counsel is looped in before major corporate or HR decisions that touch sponsored employees, rather than after the fact and that outside general counsel and internal HR teams share a common understanding of which employees are in process and at what stage.