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BIB Daily presents monthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.
In the normal course of business companies can be acquired, or change names, or change address, or even change FEIN. If the change occurs while a PERM project is in progress but before the PERM application is filed, the best practice is to disclose the change somewhere on the Form 9089 (e.g., when describing Job 1, the current job held by the PERM beneficiary). (See AILA, “Practice Pointer: Successor-in-Interest Situations Before PERM Filing – What to Do When the Employer Undergoes Corporate Changes Prior to Filing PERM,” AILA Doc. No. 21042330, posted 4/23/21).) The Form 9089 was not designed to accommodate this type of information, but the free text box available in Appendix A of Form 9089 for describing job duties is one spot that should be sufficient to accommodate this additional information.
If the change occurs after a PERM application is filed, then such changes result in changing the employer information that was entered on the Form ETA 9089 PERM application. According to the “no modification rule” (20 CFR § 656.11(b)) that has been in effect since 2007, it is not permissible to modify the content of a Form 9089 PERM application after it has been filed. Fortunately, DOL and BALCA have tacitly recognized without fanfare what amounts to an exception to the “no modification rule” by which a successor-in-interest employer is permitted to step into the shoes of a predecessor and continue a PERM if it provides documentation proving that it is a bona fide successor in interest to the original PERM sponsoring employer. For a PERM application that has been filed and is pending or has been denied, the opportunities for communicating a successor relationship and submitting documentation of the successor relationship to DOL are: (1) as part of an audit response; or (2) as part of a post-denial Request for Reconsideration. Note that any attempt to supplement a case record during an appeal (Request for Review) to BALCA will fail if the case record was not supplemented in advance of the appeal because BALCA can consider only the case record that was available to the DOL Certifying Officer at the time certification was denied. (See, e.g., Matter of Valley National Bank.)
When the PERM is certified for the predecessor employer (i.e., the change occurs after or shortly before the PERM is certified), the successor employer may use the certified PERM and continue to the I-140 stage by submitting its successor-in-interest documentation to USCIS with the I-140 petition. (See USCIS Policy Manual, Vol. 6, Part E, Chapter 3.)
For further information: