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Can I Substitute in another employee?

Posted on November 3, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My Company was petitioning in an employee for the Labor Certification. We have waited years for this employee to come and work for us. However, last month he told us that he was no longer interested in the job. We feel somewhat betrayed as we waited all this time for his Labor Certification to go through. It has been certified by the Department of Labor and we do not now have an employee for the position. Must we completely start over?

Answer: Actually, it is not necessary that you start all over with another future employee. As you know, the Labor Certification is a procedure whereby a person can be petitioned by an employer for future employment. For those that cannot be petitioned through a family member, this is often the best way to eventually get a Green Card or Lawful Permanent Residency. However, as I am sure you have discovered, the employer and the employee have to cooperate for several years for the eventual success of the Labor Certification.

Now that you have an approved Labor Certification for your company, normally you would file the Employment Petition and then the Adjustment of Status application or the Consulate Processing application if the person is outside the U.S. However, since your future employee is no longer wanting or willing to go through with the rest of the procedure, you would normally have to start over the entire process from the beginning.

However, there is an exception. If you can find another future employee who has the same basic qualifications and will work in the same position, then you can substitute in this employee.

Question: What exactly do you mean to ‘substitute’ in the new employee?

Answer: This term is exactly what it refers to. Without starting from the beginning, another person can just jump into the shoes of the previous employee (who no longer wants to continue) and start from where he left off. This means, you do not need to do another Labor Certification, nor do you need to wait all those years to continue. You simply continue forward with the new employee.

Question: This sounds too good to be true. Why would the law allow this?

Answer: It is because the Labor Certification itself does not really have anything to specifically do with the employee. The Labor Certification process merely shows that there are no qualified workers to fill the position. Therefore, when the job has been certified by the Department of Labor, it means that there has been successful proof that that particular job cannot be filled. Thus, if you find another person seeking to work for you to fill the position with the same qualifications, he or she can now just continue. This is a very useful, but not very well known provision that permits you to do this. If you do everything correctly, you should have a new employee working for you in a very short time.

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PERM: It is the same process to see if a candidate is not qualified for the position?

Posted on May 21, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I understand that PERM applications will be able to be filed starting at the end of March. Also, I understand that there has to be pre-recruitment prior to the filing of the PERM application. My question is whether the process to see whether an applicant is qualified or not qualified for the position is the same. What must be done and what must be documented?

Answer: Prior to PERM, the applicant had to meet any and all requirements for the position. If they did not meet any requirement in particular, then they were not qualified for the position and the employer would be able to disqualify the applicant.

However, there is a new provision in the PERM requirements that do make it more difficult to show that a potential employee is disqualified for the position. Under PERM, if the potential applicant does not have each and every one of the requirements of the position, he or she cannot immediately be disqualified. The PERM regulations state that if the potential employee could be trained on the job in a reasonable amount of time that he or she cannot be disqualified and they must be considered to be eligible for the position.

Question: If they are eligible for the position, what exactly does that mean?

Answer: It means that the PERM labor certification is over and that the position cannot be certified because there are available U.S. workers for the position.

Question: What can be done to avoid this happening?

Answer: There will be several ways to try to avoid this. However, most clearly would be the attempt to make the position more difficult and to make the position so that it had more qualifications necessary. The employer would have to try to show that the potential employee could not be trained in a reasonable amount of time. While it is still somewhat early to determine what may and may not work, it would seem that if the employer was a smaller employer, that they may not have the time or resources to train a person for the position. It is entirely plausible that if a small employer has to train a new person, that by time that person is up and running that the business of the employer may be suffering. Also, the higher the qualifications needed in order to perform the positions, the harder it will be to show that they can be immediately trained or trained within a reasonable time. There should be more specificity in the job. For example, instead of stating that there should be a chef. It should state that there should be a chef with Middle Eastern or Asian experience. It should state the type of dishes necessary for the person to accurately perform the duties of the position.

While we are in new territory here, if the PERM is prepared carefully, it still appears to be a much better alternative than the old RIR Labor Certification system.

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