Navigating Through PERM And The Employment-Based Preferences
The Department of Stateís (DOS) employment-based priority dates for May 2005 indicate that the retrogression in the employment-based third preference (EB-3) for professionals and skilled workers still remains for China, India and the Philippines, although the cut-off date has advanced from January 1, 2002 to June 1, 2002. On the other hand, the ďother worker categoryĒ (unskilled category) has retrogressed to July 1, 2001 for all countries. Visa backlogs are likely to continue in the employment-based third preference and may also soon appear in the employment-based second preference (EB-2) category, which at this time still remains current.
This retrogression will negate the beneficial impact that the new PERM program will bring to labor certification procedure, especially for people who are born in India, China and the Philippines and who fall under EB-3. It will also be hopeless for ďother workersĒ who are being sponsored for unskilled jobs from all over the world. Although PERM is expected to reduce the time it would take for labor certification approval from years to months, an individual who is born in one of the backlogged countries will not be able to proceed towards permanent residence unless the official cut-off date coincides with the filing date of the labor certification.
Take for example an individual born in India who is the beneficiary of a labor certification application filed under PERM on or after March 28, 2005. As the position on the labor certification requires a bachelorís degree and less than five years of experience, it would ultimately fall under EB-3 professional worker category. Letís assume that the application gets approved within 60 days under PERM. Although the employer can proceed with the filing of the EB-3 petition (Form I-140), the beneficiary of the approved PERM labor certification will not be able to apply for adjustment of status until such time that his/her filing date coincides with the DOSí priority date. Suppose this individualís labor certification was filed on March 28, 2005, he or she has to wait for the DOS cut-off date for the EB-3 for India, currently at March 1, 2002, to reach March 28, 2005 before he or she can either file an application to adjust status or proceed overseas for consular processing.
The general rule is that a person is charged to his or her country of birth, and the country of citizenship/nationality does not control. However, there are four exceptions under which an individual can cross-charge to another country.
First, a spouse may be charged to the country of the accompanying spouse. Thus, if a person who is born in India is married to a spouse who was born in Kenya, he could then cross-charge to Kenya rather than India and be able to file an application for adjustment of status concurrently with Form I-140, once the PERM-based labor certification got approved. Kenya, which is under the world-wide category in the EB-3, is still current.
Second, an alien child may be charged to the foreign state of either parent, if following to join or accompanying the parents, although this exception is not relevant to labor certification applicants. Third, an alien who was born in a location where neither parent was born or had their residence is charged to the foreign state of either parent. This provision is generally used when the parents were refugees in the country where the alien was born. Finally, a US citizen who has lost citizenship may be charged to the country of current citizenship, or if citizenship is non-existent, to the country of last residence.
Individuals who cannot claim one of these narrow exceptions should ensure that they can remain in H-1B status even beyond the maximum allotted time of six years. ß106 of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th-year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th-year. Thus, if an individual needs to file a labor certification one year before the 6th-year, it is incumbent upon this individual to file it as soon as possible. Such a person who needs to claim a 7th-year H-1B extension may want to file a traditional labor certification application on or before March 27, 2005, so as to file before the commencement of the 6th-year H-1B year. Even if the personís 6th-year starts within a few weeks after March 28, 2005, it may still be prudent for him/her to quickly file a traditional labor certification under the existing system, by March 27, just in case PERMís initial teething problems (such as placing a 30-day job order with the SWA and only being able to file 30 days after that) prevents a quick filing before the commencement of the 6th-year. This individual can later seek to re-file under PERM and still retain the original filing date as long as the job description in the PERM application is identical with the prior application.
ß 104(c) of AC21 also provides a one-time protection for an H-1B visa holder by allowing him or her to extend the 6th-year period if he or she is the beneficiary of a first, second or third preference employment-based petition, but due to country limitations, is unable to file for adjustment of status. Prior legacy INS guidance instructs field officers to grant such H-1B extensions in three year increments, for a total of 9 years. Noted immigration law commentator, Gary Endleman, however, has speculated on www.ilw.com that ß 104(c) only applies where the per country quota has been used up, and not when an entire preference has gone, which is quite likely with the onslaught of PERM cases in the near future.
Given the backlogs in the EB-3 category, PERM applicants would be interested in knowing whether their labor certification applications can be filed in such a way that they would be able to ultimately qualify under EB-2 rather than the EB-3. To qualify under EB-2, the position described in the labor certification must require the minimum of an advanced degree (such as a Masterís or a J.D.) or the equivalent of an advanced degree, which is a Bachelorís degree plus 5 years of progressive experience. The beneficiary being sponsored must also possess either a Masterís degree or a Bachelorís degree plus 5 years of experience. Even if the foreign national worker possesses these credentials, the employer must be able to justify its need for a higher qualification for the position. Assuming that the employer is able to justify such a need, a PERM labor certification application may be subject to an audit if the DOL views such a requirement to be restrictive for the position.
Moreover, those who already have labor certifications filed under the old system, and are stuck in the EB-3, may not find it worthwhile to re-file an application under PERM, unless they can capture the old filing date under the PERM rules. The old filing date can only be captured if the job opportunity in the PERM application is identical to the one described in the previously filed labor certification application. If the job opportunity is not identical, a new priority date will be awarded based on the PERM filing, which will be a big set back to an EB-3 beneficiary.
There may be situations where a labor certification filed under the EB-3 category could be re-filed under PERM as a potential EB-2. For example, the employee has been assigned to more complex duties since the last filing of the labor certification necessitating a Masterís degree rather than a Bachelorís degree. In such a situation, the old filing date will not be retained because the new job opportunity under the PERM application will not be identical to the old one. This may not matter now as the EB-2 is current, unless there is a concern about filing before the H-1B 6th-year. However, those who wish to re-file under the EB-2 category should be aware that even the EB-2 category is likely to retrogress in the near future. Moreover, there is no assurance at this point of time whether the DOL would allow one to have both a PERM application and a previously filed labor certification application in the system, even if the job opportunities in the application are not identical.
In light of the retrogression in the EB-3 categories, and potential retrogression in the EB-2 category too, employers and potential foreign national beneficiaries of labor certification applications must carefully consider all their options before filing or re-filing an application under PERM.
This article originally appeared on http://www.cyrusmehta.com/.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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