Common PERM Issues for Recent College Graduates

The PERM labor certification is the first in a three-step process in the majority of employment-based, permanent resident (commonly referred to as “green card”) cases. Because of how long this process can take, foreign nationals studying in the United States often want to begin the PERM process as soon as possible after graduating and entering the workforce, as explained in the MurthyDotCom InfoArticle, PERM Labor Certification Process and Timing Part 1 and Part 2. Common challenges related to the PERM process and how to mitigate potential issues for recent graduates are addressed here for MurthyDotCom readers.

PERM Process does not Grant Immigration Status

PERM is a forward-looking process that, if successful, results in a future job offer that can serve as a basis for a foreign national’s green card application. The PERM process, however, does not independently grant any direct immigration status to the beneficiary. Therefore, if a PERM beneficiary wishes to reside in the U.S. during the PERM process, the individual will need to otherwise be in valid nonimmigrant status. In practice, the individual likely will wish to be in a status that provides some form of work authorization. However, the PERM process may proceed while the foreign national is outside the United States.

Planning Ahead to Ensure Maintenance of Status

In many cases, an F-1 student will be eligible for one year of optional practical training (OPT) following graduation and possibly two additional years if the student graduated a STEM degree. While OPT may be the simplest initial option for receiving work authorization after earning a degree, its limited duration often will not cover the full period of the PERM process until the foreign national is eligible for a green card filing through adjustment of status. Therefore, it is advisable for a foreign national to begin considering an alternative nonimmigrant status, such as being registered by an employer for the H1B lottery, as early as possible upon graduation, thus minimizing the need to depart the U.S. before being able to apply for a green card. The timing of the PERM beneficiary’s eligibility to apply for a green card largely depends on the country of birth, as explained in the MurthyDotCom InfoArticle, Cross Chargeability in Green Card Cases (11.Jan.2023).

Meeting the PERM Position’s Experience Requirement

The minimum requirements for a PERM position often include a certain amount of prior relevant experience, which can be an obstacle for a recent college graduate who may not have much prior work experience. Internship experience often can be used, but it may not be enough to satisfy the position’s requirements. Moreover, if the foreign national has worked only for the sponsoring employer, then complications can arise when trying to use “on-the-job” experience gained with the sponsoring employer to qualify for a PERM position, as explained in the MurthyDotCom InfoArticle Using “On-the-Job” Experience in PERM Labor Certifications (24.Sep.2015). As each case is different, a specific strategy should be considered, depending on the circumstances.

Double-Dipping with CPT

If a foreign national received academic credit for experience gained during a degree program, as is the case with curricular practical training (CPT), then the individual may not “double-dip,” or use the same work experience to meet a PERM position’s experience requirement, if the individual is also satisfying the position’s degree requirement with the degree earned using the credited experience. For example, if a position requires a master’s degree and one year of experience and the foreign national’s degree was earned with CPT, the CPT experience cannot necessarily be used to meet the one-year experience requirement unless the employer stipulates that such experience is acceptable.

Conclusion

The PERM process is a complicated, labor-intensive, and time-consuming process. A recent graduate often faces unique challenges that could impact the strategy for a PERM case. The Murthy Law Firm has qualified attorneys, with extensive experience, who are available to provide representation and assistance to employers and their employees throughout the PERM and green card process.

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