Author: Jian Joe Zhou and Andrew Durham

For a job offer to be considered for PERM labor certification it must be for permanent employment. While the permanency of a job offer is one of the most important aspects of filing a successful PERM petition, it is also one of the least-well defined. The federal regulations that apply to labor certification do not define “permanent employment” at all, and the Immigration and Nationality Act (INA) defines “permanent employment” largely by contrasting it with temporary work. The language of the INA becomes self-reinforcing in its vagueness: “what is not temporary is permanent, and what is not permanent is temporary.” So what is permanent employment exactly? Knowledge of the INA’s definition of “permanent employment” and case law familiarity are necessary to answer this question.

Legal Definition of “Permanent Employment”

The Immigration and Nationality Act defines permanent as “a relationship of continuing or lasting nature, as distinguished from temporary.” Even though this relationship may be dissolved at some point in the future (the employee could quit, get laid off, or be fired), at the beginning of employment there must be the expectation that employment will continue as long as satisfactory work continues. The most important meaning of this “continuing or lasting” employment is that it is open-ended: there is no pre-known termination date for the position or fixed date of expiration.

“Permanent” does not mean that a job will last forever, just that it can last for as long as both employer and employee deem mutually beneficial. A good analogy for this relationship of continuing or lasting nature is that of a marriage. When vows are exchanged between couples, the language used is something similar to “till death do us part.” This, as we know from real life experience, does not mean that every marriage will actually last until death. No one can predict the future in permanent employment or in marriage, but both begin with the assumption that there is no pre-known time at which the relationship will be dissolved. Marriages do not begin with the words “till one year do us part.” The same idea is true for permanent employment: permanent employment entails not having a fixed period of employment from the date of hiring. In practice, a permanent employee may end up working for only one year with an employer, but at the beginning of employment both employer and employee believe that the relationship could last indefinitely.

So, for a position to be considered permanent it must be open-ended, without time-limits for the job. But, as we will see below, there are cases where this defining quality of “permanent employment” may not appear to be met when it in fact has been.

Real World Meaning for Teachers and Researchers

For teachers and researchers at institutions of higher education, tenured or tenure-track positions meet the requirement for a position to be permanent. Tenured or tenure-track positions are not the only way to establish permanency in academic or research employment, but such positions make it easier to determine whether or not a job offer is permanent. For researchers and non-teaching faculty, in lieu of tenure, a position can be considered permanent if it is of an indefinite or unlimited duration.

Whether a position requires periodic review (such as in tenured or tenure-track teaching positions) or is dependent on the renewal of grants (such as in many research positions), it is still considered permanent if the employer can demonstrate reasonable expectation of long-term employment. Even if a research position is based on grant funds that must be renewed on an annual basis a research position can be permanent. If the employer can demonstrate that it will continue to seek funds and that the renewal of such funds is likely, a research position is considered a permanent position for immigration petition purposes. The likelihood of such a renewal can be shown by an employer demonstrating that prior annual or long-term grants have been routinely renewed.

Example:

Researcher Wang has received a job offer from the University of ABC to conduct research in the university’s Famous Laboratory. Researcher Wang’s contract with the university will be renewed on an annual basis, as long as the grants which fund her department are also renewed. Researcher Wang is unsure if this job offer will be considered permanent, since it seems to be on a yearly basis. Upon contacting the research department at the university she discovers that grant renewals for the department have been routinely renewed in the past without complications. Therefore, since it is likely (and has been shown by the university to be standard) that the grant will be renewed, her position is considered permanent despite the fact that it is of a yearly basis.

Conclusion

Much of the PERM process can be understood by reviewing the Department of Labor’s (DOL) website and reading federal regulations pertaining to labor certification. However, there are some specific requirements for labor certification, such as an offer of permanent employment, which are not as easy to understand. PERM requirements, such as a position needing to be “permanent,” highlight the need for an experienced and practiced attorney when filing a successful PERM petition. It is advised that any filing employer or potential beneficiary of a PERM petition who has questions about the permanency of a position, or any other related employment questions, contact an attorney with PERM case experience.

About Authors:
Attorney Jian Joe Zhou is a Co-managing attorney at Zhang & Attorneys L.P.  Joe is one of the leading practitioners in PERM and pre-PERM labor certification petitions, especially in assisting small and mid- sized businesses.  With more than 12 years of experience in employment and business immigration law practice, Joe is an expert in PERM, EB-1, NIW, and EB-5 immigration petitions as well as in H, L, and E worker visas.  He may be reached at jzhou@hooyou.com

Andrew Durham is a law clerk at Zhang & Attorneys, L.P.

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(07/08/2012)