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Somethin's Gotta Give: PERM And The Pressure For Larger Immigrant Quotas

by Gary Endelman

Gary Endelman

In recent weeks, observers of the immigration scene have noticed two key events that will reshape the future of employment-based immigration for some time to come. First, came the retrogression of the employment-based third preference, the EB3, for skilled workers and bachelor's degree professionals born in India, mainland China and the Philippines. While the United States Department of State has indicated that movement forward on EB3 dates is unlikely before March at the earliest, informed sources speculate that April is a more plausible estimate. Even then, there is no guarantee of any advance. Second, the US Department of Labor took a flying leap with both feet squarely into the future by finally announcing what many predicted would never come, namely publication of a final PERM rule. What, if anything, do these developments have in common?

Naturally enough, the focus on PERM has been to master the rule in all its byzantine complexity. Lawyers want to know what it means for their clients and how they can use it to their best advantage. This is no small task and there is not much time for anything else right now. That is why any examination of how PERM relates to anything else is a real eye-opener. This is a classic example of the cost of complexity, an excellent illustration of how an overly technical immigration system where a few sentences in statute can produce a hundred page regulation prevents even informed observers from being able to, or even having an interest in, taking a step back from the overwhelming reality of detail to take in the big picture.

While many anxious visa watchers take comfort in reassuring predictions emanating from Foggy Bottom, there is no reason to think that other employment-based categories, most notably EB-2 advanced degree holders, will not soon suffer the same fate as their less fortunate EB-3 brethren. Truth is that the full impact of the 245(i)-inspired tsunami of labor certifications has not yet registered. More than a few of these cases just now coming on stream will be for alien beneficiaries with advanced education. Moreover, if PERM works the way DOL hopes it will, the pressures on the EB-2 category can only intensify and soon. Labor certification does not exist in a vacuum. It is not an end unto itself, although the architects of PERM may be glad when the approved labor certification becomes someone else's problem. More labor certifications will mean more I-140 petitions. More I-140 petitions will prompt USCIS to dispose of them in a prompt manner in order to reach Director Eduardo Aguirre's goal of a six-month adjudication by FY 2006. What then? Will we not have a whole host of labor certifications all dressed up with nowhere to go?

In an insightful overview of the PERM process, immigration attorney David Nachman highlighted this unanticipated but nonetheless all too real phenomenon: success with PERM means growing backlogs for EB-2 advanced degree professionals:

"This means that while it may be the case that one is able to quickly obtain an approved L/C, that same person is likely to have to wait an extended period of time for immigrant visa processing or adjustment of status since the demand for the visa numbers…is likely to outpace supply. Presently, it appears that this phenomenon is likely to occur faster in the EB-3 category, but it is conceivable that ripple effects may be felt in the EB-2 advanced degree visa classification in years to come. Unfortunately, the PERM implementation will present the opportunity for DOL to quickly shift the blame for backlogs to other administrative agencies."
In the preliminary comments to PERM, DOL indicated that it was not concerned with the possible return of 245(i) and did not regard that as a reason to delay or avoid PERM. A healthier respect for the relevance of 245(i) would appear to be very much in order The very success of PERM depends, in no small measure, on the successful conversion of the LC backlog, much of which is directly linked to the April 30,2001 245(i) qualification date. An unsuccessful upgrade means that many of the 315,000 pending labor certification cases will be abandoned to the tender mercies of backlog reduction, a daunting prospect for a rescue mission that has funding for only two years. Clearly, DOL does not want to run two labor certification systems in tandem for the long haul. Yet, a successful PERM upgrade will mean that tens if not hundreds of thousands of I-140s will cascade into an immigrant quota system that is not ready for them and that will be shocked into crisis by their unwelcome arrival. Indeed, Congress does not even know that they are on the way.

A functional shutdown of the EB-2 and EB-3 preferences for an extended period could have a profoundly adverse impact for those H-1B beneficiaries who want a 7th year. The very existence of a 7th H-1B year is largely due to the delay in Legacy INS adjudications of I-140 and DOL decisions on aging labor certifications that languished for years before anyone could decide their fate. Indeed, this was a classic example where delays elsewhere worked to the advantage of the H1B temporary worker and his/her employer. What happens to this 7th H-1B year when the magic of PERM eliminates delay and the USCIS pushes the I-140s through the system full throttle? What rationale exists then for the USCIS to allow more time in H-1B status when there is nothing pending? It is true that, in years past, INS/CIS officials, such as Efren Hernandez have, in speeches or correspondence, taken an enlightened view by holding that the alien did not have to follow up on I-140 approval within any designated period of time to file for adjustment of status or seek an immigrant visa. Yet, this was in the age before PERM when delay at DOL was the order of the day; PERM has ushered in a new dawn, or so we are told.

Unless and until Congress expands the immigrant quotas, another band-aid will have to be applied to amend the American Competitiveness in the 21st Century Act so that a 7th or 8th year in H-1B status is possible with an approved I-140 even when visa unavailability prevents action to acquire lawful permanent resident status. This can be done either through stand alone legislation or, more likely, as an attachment to an appropriations bill in the waning hours of a congressional session when everyone is anxious to leave town. The very fact that we are now talking about ways to extend a "temporary" visa like the H-1B for 7 years, or even longer, gives the lie to its label. This is no "temporary" status but a bridge to the green card that will continue to be expanded to accommodate all the cars that want to cross over to their real and true destination. Let us be honest and acknowledge the H-1B for the halfway house to the green card that it has become.

It is true that, even if the success of PERM causes the EB system to seize up in uncontrollable spasm, CIS may allow a 7th or 8th H-1B year while it waits for immigrant visa numbers to rebound. One devoutly hopes that a merciful providence will cause such a wise and compassionate administration to visit itself upon us. Yet, given the political pressures of the wider world in which we live, given the fact that there is a wide and growing disconnect between elite and mass opinion on immigration, given the civil war within the GOP itself over this very issue, particularly in the House of Representatives where the Republican caucus has shown itself notably resistant to Presidential control in the past, can we who are charged with zealously protecting the legitimate interests of our clients sleep soundly in reliance upon the enduring quality of compassion? Perhaps the best guarantee of a future 7th H-1B year would be to file the labor certification before PERM takes effect and wait for backlog reduction to reach us.

It would not surprise many to contemplate a situation where DOL approves the labor certification, USCIS approves the I-140 and the H-1B alien runs out of time. Then, what? While lawyers and federal regulators tend to compartmentalize the immigration process and focus on the individual completion of its separate and distinct parts, neither employers nor aliens think that way. To them, the only thing that counts is the prize at the end. If an approved labor certification or an approved labor certification does not enable that alien to get the green card, what good is it? That will be what the client thinks when the lawyer has to explain the reality of immigrant quota restrictions. Moreover, if an alien has to leave, what employer is going to hold open that job for very long? So, after spending a lot of money, the alien has no job, and the employer has no worker. The labor certification may be valid but, truth be told, who cares then?

Recently, Congress passed the H-1B Visa Reform Act of 2004. As a result of heavy lobbying by pro-immigration advocates, the Congress exempted 20,000 H-1B cases filed for Masters and Ph.D. graduates of American universities from the H-1B numerical quota of 65, 000 numbers. The consequences of this for both the labor certification and the immigrant quota system are clear and present. A blind man could see them. More H-1Bs will mean more labor certifications, more I-140 petitions and a greater hunger for the green card. An enlightened view of H-1B administration is going to only turn the screws even tighter on the immigrant quotas already groaning under the heavy weight they must bear.

The entire employment-based immigration system, and all those who toil in its vineyards, has taken a holiday from history in recent years when visas were plentiful and waiting periods were a thing of the past for greybeards to grouse about at intimate gatherings over their favorite beverage. Indeed, this has come to be accepted as the natural order of things, so much so that, like the bull market of the 1920's or the boom of the late 1990's, it seemed destined to last forever. The reality is, however, that immediate visa availability since 2001 is a direct consequence flowing from the collapse of the labor certification system. It is hardly accidental that the phasing out of 245(i) and the setting of April 30, 2001 as a threshold eligibility date coincided with the decision by the Visa Office of the State Department to propel priority dates forward in all virtually all employment categories with astonishing rapidity. Only when sheer numbers overwhelmed the labor certification system, when the INS/CIS pace of adjudication slowed to a crawl, could the problem of visa retrogression magically vanish. Failure in one part of the system meant progress elsewhere down the line. Precisely because DOL could not certify cases, employers could not file I-140s, and aliens could not file for adjustment of status. PERM, if it works like we all hope, will change all that. What price victory?

The advent of PERM will compel the Congress in the not too distant future to revisit the bedrock issue of immigrant visa quotas. Not to do that will only serve to negate any gains that PERM produces and frustrate those who have relied on PERM to rescue the employment-based immigration system. This will not happen immediately to be sure. Doubtless, all sides will let the pressure build up so that a new emergency campaign can be launched with the attendant lobbying and fundraising until, at the eleventh hour when business and the bar are in full cry, Congress, especially those members up for re-election, can ride to the rescue. Solving any immigration problem before the fever stage does not win many votes. There is no political gold to be mined now. When the hour of our latest deliverance is upon us, if the uninitiated want to understand why the success of PERM resulted in our immigrant quotas bursting at the seams, we could do worse than remember that old Tin Pan alley torch song of yesteryear: "Somethin's Gotta Give!"

Labor Certification by Joel Stewart - "THE PERM BOOK" will include an essay by Gary Endelman. For more info on this book, see here.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.