Say YES to PERM

Hi ALL! Welcome to my blog. The first thing I would like to discuss today is the PERM Labor Certification process and the importance of getting it started when the opportunity presents itself. 

The filing of the PERM Labor Certification is most often the first step of the employment based Green Card process. The day the Labor Certification is filed is considered your priority date and is used to determine an individual’s place in line (visa queue). Depending on your country of birth and your particular preference category (Ex: Eb2, Eb3), the wait can be years. If you are from a country where the demand for a visa in a particular preference category is more than the supply, the Department of State (DOS) considers the preference category to be oversubscribed and will at that point impose a cut-off date. If your priority date falls earlier than the imposed cut-off date, you are eligible to file the I-485 Application to Register Permanent Residence or Adjust Status.

Many foreign workers who are from countries such as India or China find that the wait for a Green Card will be years. With this realization in mind, many of those foreign workers who are in their initial years of their work visas (such as H1B) will ignore their employer’s permanent job offer because they do not see the point in beginning the Green Card process if priority dates are backlogged. Although it seems like a good strategy to wait until priority dates move to begin the Green Card process, all it really does is place you further back in an ever growing line. Just because priority dates move up one month, does not guarantee that the cut-off date will remain at that place for long. And, if you are on H-1B, you are subject to a 6-year limit on that temporary work visa. This means that more often than not, you will have to leave the country at the end of that 6-year period.

But, there is something that can prevent this from happening. Under AC21, if you have a PERM Labor Certification pending or approved more than 365 days prior to entering your last year on H-1B, you will receive a 1-year extension on that temporary work visa. Further, if you have an approved I-140 application, but your priority date isn’t current (an immigrant visa is not yet available to you) you can apply for 3-year extensions of your H status. This extension can continue until you receive the green card or receive an EAD after the I-485 has been filed.

I have worked on many cases where the temporary foreign worker wants to begin the Green Card process at the very last minute even where the employer was ready to begin the process early on. It is only then that these individuals realize how important it was to start the process years before. It always disappoints me when I have to tell someone that they will most likely have to go back home or change status until their PERM application has been pending for a full year. It is very inconvenient and disheartening for the individual. These individuals who had their cases filed after the 365 day mark have to sit and hope that both the Labor Certification and I-140 are approved before the end of their 6th year is reached. But, the reality is, the DOL is taking 6-8 months to adjudicate Labor Certifications and if the case is audited, it can take an additional 8 months for the case to be approved. Without an approved Labor Certification, the I-140 cannot be filed.

My suggestion: Even if you are in your early years of H-1B, if your employer is willing to begin the Green Card process, jump at the opportunity and run with it.