BIB Every day presents month-to-month PERM apply ideas from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and writer of the ten+ 12 months sequence of BALCA overview articles, “Shaping the Way forward for PERM.” Questions or feedback could also be despatched to Ron at ron.wada@tandslaw.com.
Within the regular course of enterprise firms could be acquired, or change names, or change deal with, and even change FEIN. If the change happens whereas a PERM challenge is in progress however earlier than the PERM software is filed, one of the best apply is to reveal the change someplace on the Type 9089 (e.g., when describing Job 1, the present job held by the PERM beneficiary). (See AILA, “Observe Pointer: Successor-in-Curiosity Conditions Earlier than PERM Submitting – What to Do When the Employer Undergoes Company Modifications Previous to Submitting PERM,” AILA Doc. No. 21042330, posted 4/23/21).) The Type 9089 was not designed to accommodate one of these info, however the free textual content field obtainable in Appendix A of Type 9089 for describing job duties is one spot that ought to be adequate to accommodate this extra info.
If the change happens after a PERM software is filed, then such modifications end in altering the employer info that was entered on the Type ETA 9089 PERM software. In line with the “no modification rule” (20 CFR § 656.11(b)) that has been in impact since 2007, it’s not permissible to switch the content material of a Type 9089 PERM software after it has been filed. Fortuitously, DOL and BALCA have tacitly acknowledged with out fanfare what quantities to an exception to the “no modification rule” by which a successor-in-interest employer is permitted to step into the footwear of a predecessor and proceed a PERM if it offers documentation proving that it’s a bona fide successor in curiosity to the unique PERM sponsoring employer. For a PERM software that has been filed and is pending or has been denied, the alternatives for speaking a successor relationship and submitting documentation of the successor relationship to DOL are: (1) as a part of an audit response; or (2) as a part of a post-denial Request for Reconsideration. Observe that any try to complement a case document throughout an enchantment (Request for Evaluation) to BALCA will fail if the case document was not supplemented prematurely of the enchantment as a result of BALCA can take into account solely the case document that was obtainable to the DOL Certifying Officer on the time certification was denied. (See, e.g., Matter of Valley Nationwide Financial institution.)
When the PERM is licensed for the predecessor employer (i.e., the change happens after or shortly earlier than the PERM is licensed), the successor employer could use the licensed PERM and proceed to the I-140 stage by submitting its successor-in-interest documentation to USCIS with the I-140 petition. (See USCIS Coverage Guide, Vol. 6, Half E, Chapter 3.)
For additional info:
- See AILA, “Observe Pointer: Successor-in-Curiosity Conditions Earlier than PERM Submitting – What to Do When the Employer Undergoes Company Modifications Previous to Submitting PERM,” AILA Doc. No. 21042330 (posted 4/23/21).
- Matter of Valley Nationwide Financial institution, 2023-PER-00287, 2024 BALCA LEXIS 387 (BALCA Oct. 9, 2024).
- 6 USCIS PM E.3, “Successor-in-Curiosity in Everlasting Labor Certification Circumstances” (final visited 1/29/25); see additionally Donald Neufeld, “Successor-in-Curiosity Determinations in Adjudication of Type I-140 Petitions,” USCIS Memorandum HQ 70/6.2 (Aug. 6, 2009), AILA Doc. No. 09090362 (posted 8/6/09).”