PERM - Labor Certification FAQs

There may be a typo in your question. If the first I-140 was filed within 180 days of the PERM validity period, the second or subsequent I-140 can be filed outside the 180 days. No problem.

Theoretically, an I-140 does not require you to be continued to be employed by the petitioning employer. You could leave after applying, but if there is an RFE, the employer would not be motivated to respond to it. As a practical matter, there is a second difficulty as well. Could your intention to continue to work at the employer be called into question because you had a preconceived intention to leave? That does not appear to be a major issue with the USCIS, but you never know.

Watch the Video on this FAQ: Job Change after I-140 Approval, Before I-485 Submission

Video Transcript

You have to start your green card all over again, no question about that. FAQ in detail...

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Watch the Video on this FAQ: Eligibility for and the process of EB-3 to EB-2 Porting

Video Transcript

You can always go up and you can always go down as long as your PERM was filed as an EB-2. If you filed your PRM as an EB-3 then you're not going to be able to upgrade to EB-2. But if your PERM was filed as an EB-2 you can downgrade I-140 EB-3. You can go back upgrade to EB-2 if you already have an EB-2 approval. You can file a downgrade second case as EB-3 with the same PERM. FAQ in detail...

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Watch the Video on this FAQ:

Changing jobs while I-140 pending and change in job title

Video Transcript

No problem at all with the job titles and the only requirement is on the date the I-140 is filed there is an intention to continue with the job. FAQ in detail...

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Watch the Video on this FAQ:

Working from Canada on or off H-1B

Video Transcript

1. Sure and there are no restrictions on time.

2. No, not really. Depends on how the PERM was filed. You should talk to your lawyers. Regarding I-140 yes of course as long as at least one day of that approval period was on or after January 17, 2017.

3. No impact on your H-1B renewal.

FAQ in detail...

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Video Transcript:

1. Yes, you can apply both change to H-4 and H-4 EAD concurrently. Therefore even though you are working for employer B your wife can derive the same benefit as you would from the earlier I-140 approval.

2. No. Even though the I-140 was from the previous employer.

3. You can change employers as many times as you like and once your I-140 has been approved 180 days there is no limit to how many employers you can change and how long you can keep getting extensions of your H-1B as long as the dates are not current. If the dates become current then you can get only one year extension as far as I recall.

4. The answer is No. Both remain valid in their own right and you can derive the maximum benefit whichever is better for you out of the two. More...

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Watch the Video on this FAQ: Getting promotions or changing job description while green card is pending

Video Transcript

If we are speaking of a green card filed through PERM it is complicated because any substantial change in the job requires you to refile the green card unless you have the intention to go back to the old job when you get the green card. 

One point at which you can change jobs, whether job descriptions or job titles or even employers is when your I-140 is approved and your I-485 has been pending 180 days, that's the AC21 portability. More...

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Watch the Video on this FAQ: At what stage should I join my future green card employer?

Video Transcript:

As far as only one aspect of the case is concerned, which is the ability to pay wages. So when your employer starts your green card from that date forward they must show that their tax returns have enough money to pay you. If on the other hand the employer has a very healthy tax return only their lawyers can tell them, then it doesn't matter when you join them so if you are worried about the ability to pay wages, it is better to join before filing the PERM. If the tax returns are extremely healthy, then you can join at any stage you like either before or after the approval of the green card. I-140 can be affected because of the ability to pay wages, but if the ability to pay wages is strong you can join a future employer anytime before or soon after the approval of the green card. More...

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Watch the Video on this FAQ: If H-1B transfer is denied, can I go back to my old employer? When does AC21 job portability

begin? Can H-1B be extended through a new employer while I-140 is in process?

Video Transcript

1. You can apply for an extension based upon two reasons either the first year anniversary of your green card filing that your PERM was filed a year ago or based upon I-140 approval. So, yes you can file for a one year extension if PERM was started a year ago.

2. The answer is yes, as long as one of the two things exist. Either the I-140 has not been revoked in that case you can use it for extensions or the I-140 was revoked by the old employer, but after 180 days of approval in both cases you can extend your H-1 through some other employer like employer B even while employer B's own I-140 is still in process. More...

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Watch this Video on this FAQ: Submitting adjustment of status, form I-485, When the applicant is in between projects/not working

Video Transcript:

In your case, if the husband is not in a project, then it raises two issues whether the job is permanent and how is it being sustained on H-1B visa because you cannot be out of a project if you're getting paid. In a scenario, like this, it creates a certain amount of uncertainty. So the rule is if you have a PERM based you have got to have the sponsoring employer offer you a job before you file the I-485. The sponsoring employer can be present or future employer. More...

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Watch Video on this FAQ: Effect of revocation of PERM on an already approved H-1 extension

Video Transcript

Once they give you an H-1 extension, if later on the PERM is revoked, which was the basis for the extension they will not take away your H-1 extension. So, supposing the date I filed my H-1 and the date my application was decided, my PERM was the basis for my H-1 extension, once the extension is given the PERM goes away and I should be able to keep my H-1. More...

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Watch the Video on this FAQ: Physicians (FMG) NIW, AC21 portability, Teaching to clinical position

Video Transcription

Under the current regulations beginning January 17, you can actually ask for a predetermination before you change jobs. You can send your Supplement J and wait, for they got to decide it before you join the new employer. They will readjudicate the case so you will know if you are safe when you move instead of just jumping. More...

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Watch the Video on this FAQ: Change of Job Description / Job Location on PERM and I-140

Video Transcript

1. The job title and job description are different things. As for the location, that depends on the PERM. If there is a complete change in the job description and job title it is still ok if you intend to come back to the old title once the green card is approved. See how the location, the title and job description is for the future job.

2. Yes of course. This kind of language we put all the time in the PERM application. More...

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Watch the Video on this FAQ: Do jobs have to be same or similar when I port my priority date?

Video Transcript

1. When you port the whole job; I-485 is pending 180-days, jobs have to be same or similar. When you are just porting the Priority Date in the I-140, jobs can be completely different. You have to start the green card from the PERM process, but when you are just porting the Priority Date there is no problem.

2. The answer is No. As long as you are maintaining your H-1 status and she is maintaining her H-4 status. More...

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Watch the Video on this FAQ: Changing employers after 6 years of H-1 are over

Video Transcript

1.Yes you can file for an extension. That's all you need a copy of the approved I-140. It is safe to change companies. The law is once your I-140 is approved and stays approved for 180 days, even if your old employer revokes your I-140 you have the right to keep extending your H-1 through any employer.

2. I think you can apply 180 days. The new regulations allow you to file for EAD extension 180 days ahead of time. Have it double checked. It is not a guaranteed right but USCIS has said that they will accept that unless they post it differently on their website. So always double check the information. More...

Watch the Video FAQ: Can I go back and join an employer who has my I-140 approval, but I left them

Video Transcript

Yes, you can go back to your old employer, but again as long as the job was continuing to exist you can go back to the I-140 employer and you can pick it up from the I-140 process itself. More...

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Watch the Video on this FAQ: Using for green card experience gained with end client

Video Transcript:

Normally you cannot use the experience gained by the end client if the end client applies for your GC. That is the normal rule. More...

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Watch Video on this FAQ: Will H-4 EAD Rule be revoked?

Video Transcript:

1. I don't think it will be revoked.

2a. Yes, you can if your spouse's I-140 is approved or she is in the 7th year of her extension.

2b. Yes, you can change back to H-1B.

2c. I cannot predict this question as it is a question of logistics. 

2d. Most definitely.

3. You can be in any status. If your right to activate or H-1B comes mature you can jump back to H-1B without any problem. 

4. It does not.

More...

Watch Video on this FAQ: Extension of H-1 beyond six years, gap, in H-1, late in filing PERM, etc.

Video Transcript:

Under the current rules, there are two ways you can get H-1 extension beyond six years: one is based upon the time you're green card has been going on and the other one is based upon the stage you are at and we don't care what time the green card was started. Time-based and stage based. Time-based works like this. The day of the first anniversary of your perm filing is reached you are entitled to a one-year extension of your H-1 on a year to year basis. Stage-based green card, the day your I-140 is approved, you are entitled to three-year extensions. So those are the only two ways.  

What if you are late? What if you have only eight months left on your H-1 when your PERM is filed? 

Well, if there is a four-month gap or a two or three-month gap you would either have to convert to another status or leave the USA and then you come when you're one year time is matured or stage based green card is activated because you're I-140 is approved.

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First of all generally speaking, for H-1 and for green card your salary cannot include terms that are variable. So for instance if you get a yearly bonus, but the bonus changes from year to year you cannot include that as a part of your salary. Salary cannot include per diem. A lot of companies and a lot of employees get stuck with a lot of problems because per diem is set up as part of the salary. Per diem is not salary. Benefits are not salary. So all three of these items are big problems when you talk about H-1 and green card salaries. You cannot include benefits, You cannot include per diem and you cannot include variable amounts such as bonuses. if the bonus is guaranteed, in terms of the amount then you can include it otherwise but this is not salary.   

But how about a percentage?... In PERM for sure you cannot have this arrangement because this is not a fixed amount. Green card is a job in the future and what if you have a different set up now and another set up when you actually get the green card, I think that's ok but the  problem is if you are in H-1 this actually offends H-1 as well.  

Watch Video from Rajiv S. Khanna's conference call that addresses this issue

 Note: The answer is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.   

https://youtu.be/H_VV9kV_lOg?t=688

FAQ Transcript:

This is a very tricky issue that has come up time and time again and one month we have one answer and after six months we have another answer. There are two sets of questions here, one is priority date, if the employer revokes I-140 does it get lost and the other one is some issues about Green Card through a future employer.

So let's discuss two sets of issues, as of November 12th, 2015 the answer is, USCIS will not take away your priority date if the old employer revokes the I-140. However, you will not have any right to extend your H-1 based upon I-140 that is already gone. In addition, if the I-140 is revoked for fraud, misrepresentation or mistakenly having been approved by USCIS, you will not have the priority date then.

USCIS has reversed itself like three or four times. They started of a few years ago saying you will lose your priority date, if the employer revokes the I-140, then the sudden No, you will not. Few months ago they said Yes you will lose the priority date and couple of weeks ago again they said No you will not. So they have gone up and down on this issue all the time.

Another question often asked by a community member who says there are cases were very accurately people reported that their priority date was lost between May 2015 and September 2015 and the answer is yes. I know that because I did lot of consultations in between and there were lot of cases that were denied. Now these cases should try to file a motion to reopen or reconsider and try to get their priority dates.

The other question he put forth was, can we get to see a copy of this teleconference document?

Unfortunately, there is no copy. It is comments from one of the committee members, we have all the volunteer committees as American Immigration Lawyers Association (AILA), where members go on behalf of AILA and meet the USCIS, in one of those there is a comment from American Immigration Lawyers Association committee member that says; the government has categorically stated in that meeting that they will not take away priority date.

The other question is:  Does withdrawal of I-140 by an employer same as revocation by employer or withdrawal and revocation are two different things?

Withdrawal implies of something little different. Withdrawal implies that I-140 was not approved at least to my mind, even when it was pending it was withdrawn. Because once it is approved only can be revoked, I don't think it can be withdrawn.  Something is not approved and its withdrawn then we are out of luck there is no priority date. Priority date only can be conferred by approved petition. Once it is approved then it is revoked by employer under the current thinking of the government that we all know, they will not revoke or take away your priority date.

I am little hesitant to say that you can depend upon the word of the government, because I have looked at the regulations and I have looked at the way these folks have been flip flopping on the situation makes me very nervous to be in the situation, prepare for the worst, hope for the best that's all I can tell you.

Question: Has USCIS listed their final official position on this issue as like a document anywhere on their website?

Not yet, I have not seen anything in writing from the government.  So I won't be able to give you much there but as soon as I get something official from the government, I would be certain to post it. 

Question: Now Green card through future employer, what if another employer starts my Green card processing, can I continue working for Employer A , while Employer B initiates new GC process for me?

And the answer is yes. You can have 20 new employers to start Green card process. As long as you have good faith, intention to join whichever comes first or whichever is more suitable for you. I don't see any reason that you cannot have multiple Green cards filed.

Question:  Is it possible for me to clear the PERM and I-140 Stage of GC process of Employer B while still working for EMPLOYER A?

It is actually possible to process entire Green card with employer B, even though I-485 gets approved while you still working for employer A.

Question: I may or may not join EMPLOYER B. As I am in the process of looking for FTE (full time) position ) Say I moved to EMPLOYER C (FTE) and I have never worked with Employer B and have I-140 approved with EMPLOYER B .

There is actually Yates memorandum of May 2005 that talks about this. As long as you had good faith intention all the way to join, let’s say your I-140 was approved, PERM of course approved, I-140 was approved through employer B. You are working for employer A, I-140 approved through employer B, priority dates become current you still working for employer A, priority date becomes current after 180 days actually you do not ever have to join the sponsoring employer. You can join any employer who gives you same or similar job whether it is employer A, C, D or E.

There are some issues about coming back to employers after leaving them during the Green card process. I would want you to have one on one consultation with your lawyers, not an easy issue to discuss in a few minutes but it can be a problem if you leave an employer in the middle of the process and come back. Lot of people did not have any problems, one or two cases occasionally do get the problems. The government asks questions like why did you leave if this was the permanent job, if you left who was doing that permanent job, things like that could come up and there are whole set of issues that need to be discussed with your lawyers basically.

Question: I also heard about rejections in PERM. Can EMPLOYER B start two different GC process for me and file two PERMS at the same time?

No. Technically they can file two Green card process against two jobs, I would highly recommend against it. It can be for two different positions only, you can't file a PERM for the same employer, same employee, same job twice No.

Question: Does it cost anything for the Employer to hold an approved I-140? 

It does not, except sometimes the government can question their ability to pay wages and they look at all outstanding Green cards and indirectly it can become an issue for the employers. It does not cost them anything out of ordinary. Let me rephrase it, nothing out of pocket but if the RFE comes and if any of the cases about ability to pay wages I guess at that point they can revoke the I-140 if they want.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=65 

FAQ Transcript: 

This question has two sub sets, one is about an individual converting from H-1 to H-4 while they are processing their Green card and back to H-1 if necessary.

Second question which is also a FAQ, whether a Green card can or should be filed while somebody is on F-1 status.

For first part of question, wife is currently on H-1B, gentleman who posted this also on H-1B, I-140 is approved. Wife's employer is willing to start the Green card; wife is willing to move to H-4 EAD. So is that going to be interruptive of the Green card and the answer is No. The fact that she has moved from H-4 to H-4 EAD does not in any way interfere or interrupt her Green card process.

If PERM is filed, can she convert H-1to H-4?

She can convert H-1 to H-4 EAD anytime she wants. This has no effect on going process of Green card process and it is in my view reasonably safe. Of course there are pros and cons of both approaches, sometimes it makes more sense to stay on H-1 and sometimes it makes sense to go on H-4 EAD. Typically, I would say if you are I-140 is secured and your own status is secured, your job is pretty solid because remember her status is derivative of yours, if something goes wrong with your status it affects hers as well. Therefore, in my view its Ok to convert H-4 EAD if your job is pretty solid and your I-140 is not going anywhere. And if she wants to convert   back to H-1 that too is not a problem, so going from H-1 to H-4 EAD and H-4 to H-1 is quite permissible and she will not be subject to the Quota, except when more than 6 years passed from her H-1 status.

So if she wants to convert back to H-1 within the 6 years of first approval, it is not a problem. She is not subject to the Quota.

Second part of the posted question was can we not apply for Green card while we are still on F-1 status?

First of all remember, filing for Green card is little deceptive, if you are filing for a PERM that's not really filing for Green card because in Immigration related forms the question asked is this, have you or has anybody in your behalf filed a Green card or an immigrant visa?

Immigrant visa is form I-140, so if you filed a PERM and PERM is under process that is not a Green card, technically. So is that Ok to F-1? 

I believe so, I don't see any problem in doing that. The problem if any begin is when I-140 is filed, because a F-1, unlike a H-1, H-4 or L-1 or L-2 is not a dual intent visa, it requires you to have non-immigrant intent and by filing the Green card which is I-140 actually you are exhibiting immigrant intent that means you have traveled outside USA on student visa, your stamping of the student visa or even your school transfers etc. could be affected if at any time the question of your immigrant intent comes up. So if you travel out and CBP officer at the airport notes that you have a Green card going and if they find out they could decline your entry, and that is something to worry about, other than that filing a Green card on F-1 is not forbidden. In fact, like you noted sometimes, it may have been recommended because it saves your time.  

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/H_VV9kV_lOg?t=1852

FAQ Transcript:

Answer 1. In this context we are talking about a PERM and not the NIW. Also remember NIW is under EB-2. Most physicians fall under the EB-2 category.  Here is how a PERM can be drafted. It depends on your employers, your lawyers and you and there is no requirement that you be fully licensed. Only that you are eligible for a license, or you are at a certain level of profession shall we say maturity or advancement so it could be possible to file for a PERM depending upon what the employers requirements are and  what the state rules for licensing are to file upon even before what you believe is your eligibility. Also remember rules for giving full license to residents differ from state to state. They are not the same in every state. So you have to look at the states in which you are going to start the PERM application.

Note: Your eligibility for licensing does not have to be from when the date of recruitment begins. It has to be established the date the PERM is filed and typically recruitment can last a few months. Before that your eligibility must be perfect upon the date PERM is filed and not when the recruitment begins. 

Answer 2.  It may or may not be, very difficult to say.

As far as we know, USCIS has once again revered its position and has stated that priority dates will be retained if the revocation is based upon an employer's request.  See: the blog entry here

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://youtu.be/ZvUVIGTM-Kk?t=602

FAQ Transcipt:

That is not required. If you can get the school to give you a letter that says  you have finished all your degree requirements and you are waiting for  formal  confirmation of diploma or degree, that's good enough. But you can't be in a situation where you have taken the examination but results has not come yet, who knows you may not be able to pass.

So, if you have completed all requirements that is research or credits, whatever it is. If you have done those and you are nearly waiting for formal certificate, that is no problem. You can go ahead as you have got your degree already.

Regarding Question 2 the answer largely depends upon the lawyers. Have them review it. There could be potential legal issue. But if your degree requirements are completed and they induct you , employer inducts you or a job requires the masters degree or equivalent, you should be able to use that degree certificate when it comes or even started now. This is an issue which needs to be discussed with your lawyers in detail.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.  

https://youtu.be/ZvUVIGTM-Kk?t=1937

FAQ Transcript:

I think it is always a smart idea to have a complete copy of your file so that you know what has been filed on your behalf. If you can’t do that at the very least have copies of all your approval notices and at least a copy of your labor certification if you have filed the PERM. Copy of H-1 approval, copy of I-140 approval and copy of your PERM. That is what I would recommend.

It IS possible for your green card to remain unaffected even after the corporate change over. Do some research on "successor in interest." I think it is a bad idea to change companies in response to a PERM audit. 

Generally speaking, you can use the experience gained with an employer who has a tax ID number other than your petitioning employer.

If there is a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the alien, the employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. 20 C.F.R. 656.17(l). In order to provide the Certifying Officer (CO) the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators by marking "yes" to Question C.9 on the ETA Form 9089. See also Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc).

A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term "marriage" will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

A familial relationship between the alien and the employer does not establish the lack of a bona fide job opportunity per se. Ultimately, the question of whether a bona fide job opportunity exists in situations where the alien has a familial relationship with the employer depends on "whether a genuine determination of need for alien labor can be made by the employer corporation and whether a genuine opportunity exists for American workers to compete for the opening." Modular Container at *8. Therefore, the employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control and that these job opportunities are available to U.S. workers. When the employer discloses a family relationship, and the application raises no additional denial issues, the employer will be given an opportunity to establish, to the CO's satisfaction, that the job opportunity is legitimate and, in the context of the application, does not pose a bar to certification. The CO will consider the employer's information and the totality of the circumstances supporting the application in making this determination.

Please note that failure to disclose familial relationships or ownership interests when responding to Question C.9 is a material misrepresentation and may therefore be grounds for denial, revocation or invalidation in accordance with the Department's regulations.

For more information please visit this link : http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm

The priority date is yours the moment the I-140 is approved. There is no "cooling off" period. 

Employees retain PD even if the old employer withdraws the approved I-140. PD is lost only if USCIS revokes I-140 for fraud/misrepresentation. Do remember, however, there is no right to H-1 extensions based upon a withdrawn I-140. 

As long as PERM appeal is pending (Not, MTR), you can apply for one-year H-1 extensions indefinitely, even beyond 6 years.

1. The actual process for the Foreign Labor Certification varies depending upon the program being used. This http://www.foreignlaborcert.doleta.gov website contains information regarding the process for filing for each of the programs under the Department of Labor's (DOL) jurisdiction. The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized in his/her behalf. In general the Department of Labor works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a Foreign Labor Certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

2. Depending upon the nature of the program the process for filing could vary between months and years. To be of assistance, we have provided on our Web site the current processing times in the DOL regions and states. Currently, the process to obtain an employment based temporary labor certification (H-2A, H-2B) usually may take months through the state agency and the DOL regional office. However, H-1B processing usually only takes seven working days. The process to obtain an employment based permanent labor certification can sometimes take up to several months after completing the necessary recruitment steps and filing the application with the National Processing Center. The PERM Processing Times are updated monthly and available for view at http://icert.doleta.gov.

For the employment-based permanent visa, the USCIS may take up to an additional 9 months to process the request. USCIS will provide"premium processing" for some visa categories with an additional fee.

3. Most programs administered by the DOL do not charge fees for a foreign labor certification. Every program does, however, require fees be paid to the USCIS upon filing an application for a visa or greencard. See the individual program (H-2A) for details regarding DOL fees. See the USCIS site for details regarding USCIS fees.

4. An employer should pro-actively and regularly, advisably once a month or less, monitor the status of an electronically filed labor certification application via the Permanent Case Management System, and compare its filing date, i.e., the date the application was submitted for processing, to the PERM processing times posted on the iCERT Visa Portal System (http://icert.doleta.gov/). If there is more than a 30-day difference between the employer's filing date and the PERM processing time, the employer may contact the National Processing Center (NPC) for a status update.

An employer who filed a labor certification application via mail may contact the National Processing Center's Help Desk at 404-893-0101 for a status update.

If indeed there is a defect in the form, USDOL should be able to approve the PERM within a few months upon an MTR. BALCA has put out a number of rulings in the last few months permitting such cases to be approved. In my opinion, it is highly unlikely that the form does not have experience drop down or similar fields. That is just too improbable. The problem may be more complicated than that.

DOL indicates that methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

DOL indicates that it does issue a Request for Information when possible, but relies on employers and attorneys to provide complete information regarding alternate wage surveys to allow the wage determination to be based upon that survey. DOL does not have the resources to issue a Request for Information on every incomplete request, particularly those where major components of the alternate wage survey are not provided.

DOL indicates that this kind of question on an audit where the work location and residence location are close together is likely a training issue. DOL does, however, believe that it is appropriate to inquire about this kind of issue where it is unclear why the residential address and the work address are far apart from one another, and does issue audits on that basis where appropriate.

DOL indicates that it has completed its project to address “straggler” cases and has returned staff to normal job duties. This may help to improve timeliness of responses from DOL on these kinds of issues.

DOL indicates that there has been at least one case where the I-140 was approved by USCIS despite issuance of a “duplicate” certification with different dates. In that case, the DOL and USCIS were advised of the duplicate certification issue prior to the I-140 being approved.

DOL indicates that it does not monitor or track particular reasons for withdrawal. DOL does, however, pay attention to the rate of withdrawal both for individual employers and overall. The withdrawal rate has decreased, but at one point was more than 10%. Such a high rate of withdrawal caused DOL concern. DOL does recognize, however, that there are legitimate reasons why an application might be withdrawn, and will review existing guidance and make changes if appropriate.

DOL has suggested e-mailing the SR e-mail address for clarification on particular recruitment instructions. Note, however, that the employer should still follow the recruitment instructions. The focus is whether a full labor market test was conducted that provides U.S. workers with opportunity to apply for the position. DOL is not intentionally seeking duplicate ads.

DOL has indicated that it is generally not opposed to consolidation of recruitment efforts in appropriate cases, and a request can be made to the SR processing e-mail box for consolidation. Even where cases are consolidated for recruitment, however, DOL will still require individual recruitment reports for each SR application.

DOL indicates that it expects to see a significant increase in the speed of processing of SR cases as well as cases under audit. Staff members who normally work on SR cases were temporarily reassigned to identify and process “straggler” cases. That project has been completed as of October 1, 2012, and DOL has moved those staff members back to their normal work. This should result in much faster processing of both SR and audit cases.

For purposes of a Labor Certification, a qualified U.S. worker is defined as a U.S. citizen, a U.S. Legal Permanent Resident (Green Card holder), or other specially authorized alien (such as an asylee or refugee) who satisfies the minimum job requirements and is willing to take the position under the conditions and terms described in the Labor Certification application.

You will be eligible for H-1 extension beginning October 2012, even if PERM is pending audit or not.

People with over 5 years of exp. after a 4-year degree may be ale to restart the green card under EB-2 category and then port their PD. Basically, you are redoing the PERM and I-140 for an EB-2 level job.

Yes, but only if the labor cert is still not time barred (within 180 days of its approval); the employer still has the intention to hire you some time before or after the approval of your green card; and you have the good faith intention of joining them.

You can avoid the need for PERM through EB-2 only if you are applying for a National Interest Waiver.

If you leave the employer after approval of I-140, you carry your priority date. Before then, you can carry nothing. In both cases you have to start another PERM application with the new employer. If you do not wish to start a new green card, read AC21 portability: http://forums.immigration.com/content.php?67-AC21-Portability-Changing-J...

While a PERM audit or even an appeal against a denial after the audit is pending, you would still be entitled to H-1 extensions beyond six years.

I see no issue with holding stock, but that will be a problem for PERM-based green card. Also, processing green card under TN can be problematic.

This question requires your lawyers to assess the case. Generally speaking nothing stops you from filing a PERM application while on OPT and an Eb2 appears possible.

It is possible, but the green card will have to be started again from PERM.

You can file I-485 in the month when your priority date becomes current (and then get EAD). Priority dates are reported in the Visa Bulletin. I see no problem in carrying the priority date forward if you file an EB-2 through a new employer. As to risk, that needs to be evaluated by your lawyers.

It is possible and common for employer B to get H-1 extension based upon an I-140 approval of employer A. You need to speak about the details with a lawyer.

It is logically inconsistent for two jobs from the same company for the same individual. If you have a good, logical, true explanation, there is no law that says you cannot have two PERM apps for the same individual for different jobs with the same company. But you cannot transfer PD until the I-140 is approved. I see no issue with changing jobs right away. You may have just enough time.

The PERM audit can take a lot of time. I just checked with one of our case managers. They tell me that they have no figures for the time it takes between start and end of an audit, but the total decision life cycle (from filing to decision) of an audited case is 2 - 2.5 years.

If you have an I-140 approval and your PD is backed up, you are entitled to a three-year H-1 extension beyond six years. It does not matter when your PERM was filed.

If you are qualified, you can apply for Schedule A. I cannot think of any way the PERM denial or layoffs could cause any issues and there should be no waiting to file.

When we check status of electronically filed applications, it should say "In Process" when it is pending. That should be sufficient.

Generally speaking, as long as the jobs are genuine and the employer has the ability to pay, the number is irrelevant.

1. No. PERM application determines what your category is.
2. If your I-140 is not approved, you cannot carry your PD to a new employer.
3. Once approved, you can carry your PD, even if you leave earlier than six months. You do have to start your green card process all over again.

It could take a bit longer than 4 months to file. You can work on F- 1 if the school allows Curricular Practical Training.

You do have to start the green card all over again, but your PD is yours to take with you to the new job.

The information shows an approximation. Times vary. If your application goes into a review and audit, it can take 2-3 years.

I see no problem at all with the two processes proceeding concurrently. I always advise people to concurrently file green card through all categories under which they can qualify.

Reduction of hour from full time to part time can raise issues about the availability of qualifying job (full time, permanent) for green card purposes. In addition, this can be a violation of H-1 laws. I suggest you speak with a lawyer.

Technically, the employees on H-1 are only temps. Those positions are available. Recruitment is conducted against those permanent positions that are currently occupied by temporary workers.

Impossible to predict. It all depends upon the type of degrees and the language used in the Form ETA 9089

PERM times are on our web site. You cannot check the progress of the case, except through your employer. If they filed electronically, the application status should show where things are in terms of: pending, denied, approved only.

A1. I do not know of any law that requires an employer to withdraw a PERM application if an employee leaves or gets laid off, but the employer still retains a good faith intention to hire them back. When we first filed the PERM application, we filed it in good faith, asserting to the USDOL under penalty of perjury that:
You have enough funds available to pay the wage or salary offered the alien and you will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States.
Both these assertions were true when we filed the PERM application on your behalf. So, we have followed the laws to the letter. Now, several months later, circumstances have changed. Do we have an affirmative duty to withdraw the PERM application? I do not see such a duty in the law.
Having a PERM in process, gives your employee an opportunity to continue extending their H-1 with any employer beyond 6 years. That is a considerable benefit.
The government could take the position that your application is now void on two grounds. First, you no longer have a job open, which is a continuing requirement. Second, you had an interruption in your ability to pay the intended wage, which is also a continuing requirement. We could lose the green card on both counts, but I see nothing illegal in letting the application stay pending. My opinion could change if we get an audit request from the USDOL. At that point, it may be inappropriate for us to continue. That is something we will review carefully at that time. Please do remind us. We will also post a note to your file.

A2. A PERM is not a visa application or an immigrant petition, a Form I-140 (the step after PERM) is.

As long as the job requires a Master's degree and you have earned that degree by the time you file your PERM, you should be able to get EB-2.

You can keep applying for H-1 extensions indefinitely while the PERM is pending (filed a year ago).

They can file 6 months ahead of the contemplated start date - as long as one year of PERM filing is over by that date. But you might have some gap where you cannot live or work in USA.

You can apply for H-1 extension 6 months ahead. But the start date cannot be earlier than March 2010 (when the one year pendency/filing of PERM is reached). You can also get an H-1 extension when your I-140 is approved (if your priority date is not current).

Generally speaking they can take over your green card application if they have taken over substantially all assets and liabilities and the job remains the same. Anything short of that needs to be analyzed.

The processing times are available here: http://www.immigration.com/processing-times-and-status-checks. Priority dates are not transferrable unless I-140 is approved.

All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.

H-1 extension beyond six years can be obtained under two circumstances:

First, indefinite H-1 extensions in one-year increments can be obtained, if the I-140 (or I-485) was filed and the green card process was started a year ago. The GC process is started for:

- Labor Certification based cases (including PERM) the date for the begining of the countdown is the date when the labor certification is officially received:
- for PRE PERM cases - by the local office (SWA); and
- for PERM cases - the date it is received by the DOL; and

-EB-1 and National Interest Waiver cases; when the I-140 is officially filed with CIS.

Second, if your I-140 has been approved but you cannot file I-485 because your priority date has retrogressed, you can get H-1 extensions (most probably) in chunks of three years each time.

You are permitted to apply for an extension 6 months ahead of time, as long a you meet one of the above two criteria on the requested start date of H-1.

A lot of employers have been asking this question in the last few months. Is it even possible to get a labor certification with the US unemployment at a 26-year high.

The answer is yes, if the job requires skills that are not available in the market. For instance, physicians and health care workers in certain areas, IT professionals with specialized skills such as warehousing, BI, LAMP and other open source products, advanced ERP packages (like Peoplesoft, Oracle Apps, SAP, Documentum), Pharmacists, CPA's... there are so many professions and skills still in demand. This list is by no means exhaustive.

The way I look at it, at least you should try. If you fail, at the most you have lost money and can try again in a few months. Job markets can change very rapidly.

True. Converting to EB1 through an executive or a managerial job is the way to go. That way you can go thorough EB1 rather than PERM based process that takes several years.

All things considered, in my view, a Mandamus is possible. But the chances of success are remote at least in DC circuit. Typically, in delay cases, courts do not interfere with the executive branch of the govt. At the very least, lawsuits draw attention to difficult issues. I think a petition to the govt. should be the first step. May be the worthy President can help. Although, speedy processing in this environment is certainly not a politically popular issue, but we have all followed the laws and the promise of the laws.

For recent updates on PERM processing please click here.

http://www.immigration.com/processing-times-and-status-checks

In a recent meeting, USDOL has stated:

Quote:

...As of late January 2009, DOL is processing cases with priority dates in June 2008, cases in the audit queue with priority dates in August 2007, and cases in the appeal queue of April 2007....

One of the reasons that case processing slowed in the 4th quarter of 2008 was that DOL was hiring and training contractor staff for the Atlanta National Processing Center. The contract was awarded last summer, a losing contractor appealed and won the appeal, then the initial contractor sued. The workers did not come on board until last September 2008. The Atlanta Processing Center has only 40 federal employees and the rest of the staff consists of contractors. With the contractors now in place, the pace of processing has picked up. Only 4,571 PERM applications were completed in October-December 2008 but 3,500 PERM applications were completed in January 2009. However, DOL expects this will level off and processing rates will slow down again because of the limited number of federal employees available to review the contractors’ work.

Quote: Can I receive a promotion, extraordinary increase in salary or change in job location during the pendency of a labor certification based green card?

Ans. That is not advisable. A promotion or change in job description during the pendency of a green card can jeopardize the green card process. The GC process is for a specific job, at a specific location, at a specific salary.

CHANGES IN JOB DESCRIPTION
Minor changes can be accommodated. But any substantial change would require starting all over again.

SALARY INCREASE
Routine raises in accord with the industry practice should not create a problem. But any large salary hikes are likely to be a problem.

CHANGES IN JOB LOCATION
To preserve your green card, we must be able to show that you are TEMPORARILY changing some items in your job description for now, the present time. For instance, the GC is for a job in NY, but you are temporarily working from California. When the GC is approved, you will be placed back in NY.

If there is an irreversible and substantial change in your job description, we will have to start the entire green card process from the beginning. The only exception to this would be where the change is temporary.

In my opinion, most definitely, yes. As long as both companies are acting in good faith (honestly) and you have the intention to take whichever green card happens to be more convenient or quicker for you, you can file 2 or more labor certs (PERM) through different employers.

The attached PDF document contains information from DOL on PERM backlogs, program future and other pertinent matters. Enjoy. Regards to all. Rajiv.

The answer is yes, BUT, the case is likely to be very closely scrutinized and may even require supervised recruitment. That means, USDOL will most likely ask us to place advertisements again under their direct supervision. So, we could end up repeating the advertising. This could cause delays (and of course even denial).
This question had come up a few weeks earlier also. I wanted to clarify this with the USDOL so we wrote to them. Our letter and their response is attached.