Author: Attorney Jian Joe Zhou (jzhou@hooyou.com)

In the U.S. employment-based immigration system, the PERM labor certification is the first step for an employer to sponsor a foreign worker for a green card. However, many people mistakenly believe that an employee applying for PERM must already be employed by the employer during the application period. In reality, the PERM labor certification pertains to prospective (future) job opportunities, and the law does not require the employee to work for the employer during the process. In the PERM and I-140 application processes, the U.S. employer is the petitioner, and the foreign worker (or prospective employee) is the beneficiary.

I. Legal Requirement: Employee Only Needs to Start Working After Obtaining Green Card

According to U.S. immigration law, the core requirement of the PERM labor certification is that the employer must offer the foreign employee a permanent, full-time future position. The legal obligation to work only takes effect after the employee obtains a green card. Specifically:

- If the employee is adjusting status within the U.S. , they should start working for the employer after I-485 (green card) approval.

- If the employee obtains an immigrant visa through consular processing, they should start working for the employer after entering the U.S. with an immigration visa.

This means that during the PERM labor certification process and the subsequent I-140 and I-485 stages, the employee can work for other companies or even reside abroad, without needing to establish a current employment relationship with the petitioning employer.

II. Employers Usually File PERM for Current Employees, but This Is Not a Legal Requirement

Although the law does not require employees to work for the employer during the PERM application, most employers prefer to file PERM applications for employees who are already working for them and have demonstrated strong performance. This is primarily a business decision rather than a legal requirement. The reasons include:

- Employers want to evaluate the employee’s skills through actual work experience to ensure they meet job requirements and are willing to work for them in the long term.

- Employers aim to reduce the risk of complications (such as ability to pay) and ensure the smooth processing of the PERM application and subsequent steps.

A. Foreign Applicants

- A mechanical engineer working in China finds a U.S. company through friends or job postings.

- The employer is satisfied with the candidate’s skills and decides to sponsor them for a PERM labor certification.

- The engineer can continue living abroad until they obtain an immigrant visa, enter the U.S., and receive their green card before officially starting work with the employer.

B. F-1 Students or H-1B Work Visa Holders

- A software engineer currently working in the U.S. on an F-1 OPT or H-1B visa is employed by Company A.

- Company B believes the engineer fits its long-term needs and is willing to sponsor them for a PERM labor certification.

- The engineer can continue working for Company A and does not need to switch to Company B during the PERM application process.

- The law requires the software engineer to start working for the PERM petitioning employer (Company B) no later than after obtaining the green card.

III. Reasonable Employment Duration After Green Card Approval

For employees who have never worked for the sponsoring employer before the PERM application, it is generally expected that they work for the employer for a reasonable period after green card approval.

- The law does not specify an exact duration, but working for at least one year is typically considered reasonable, as it demonstrates a genuine long-term employment intent.

- Both the employer and the employee must have a genuine intent to maintain the employment relationship during the green card application process. If the application is merely a means to obtain a green card without the intent to fulfill the employment agreement, this could be deemed fraudulent by immigration authorities, potentially impacting future immigration status or citizenship applications.

IV. Green Card Flexibility Under the AC21 Act

Additionally, the American Competitiveness in the Twenty-First Century Act (AC21ACT) provides more flexibility for employment-based green card applicants:

- If the I-485 (green card application) has been pending for more than 180 days and the I-140 has been approved, the employee can change employers as long as the new position is in the same or similar occupational classification as the original PERM job.

- This provision allows employees to switch jobs while waiting for their green card without affecting their application.

V. Conclusion

The PERM labor certification is designed to facilitate future permanent full-time employment, not current employment. Therefore:

1. The law does not require applicants to work for the employer during the PERM application, but they must fulfill the employment commitment after obtaining the green card.

2. While many employers prefer filing PERM for current employees, they can also sponsor prospective employees.

3. The AC21 Act offers flexibility, allowing eligible employees to change employers while waiting for their green card without affecting their application.

Understanding these legal provisions can help both employers and employees make more informed career and immigration decisions while taking full advantage of available policies.

Attorney Jian Joe Zhou is the managing attorney and co-managing partner of Zhang & Associates, P.C., with over 20 years of experience in business immigration law. He has successfully handled thousands of immigration cases, including H-1B applications, and specializes in complex H-1B cases across various industries and academic backgrounds. For more legal service information, please contact Attorney Jian Joe Zhou at jzhou@hooyou.com.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

Zhang & Associates, P.C.

Chicago • Houston •Seattle 

Tel:	1-800-230-7040, 713-771-8433
Email:	info@hooyou.com
website:	http://www.hooyou.com

 

(02/14/2025)