On Feb 15 2008

Permanent Residence Strategies for the Best and the Brightest after PERM

Without question, the implementation of PERM necessitates a reevaluation of strategies for obtaining permanent resident status.

This article will analyze how, if at all, these strategies have changed for aliens who are or may be eligible to file an employment based first preference (EB-1) immigrant visa petition (for an extraordinary ability alien or outstanding researcher/professor) or an employment-based second preference (EB-2) immigrant visa petition (for a national interest waiver or Schedule A, Group 2 ).

The major change that necessitates this reevaluation, of course, is the reduction in labor certification application processing times from approximately two to five years before PERM to a promised 45 to 60 days for most (unaudited) applications under PERM. Despite the promised reduced processing times, this article will conclude that for those with a cognizable case based on exceptional or extraordinary talents, petitions filed under EB-1 or EB-2 may still be preferable compared with a PERM labor certification application.

This article’s analysis is not necessarily relevant to every potential EB-1 or EB-2 petition, as some aliens do not have the option for labor certification. This is because they do not have permanent job offers, they are self-employed, they do not have employers who are willing to undertake the necessary and onerous recruitment efforts, or they gained all relevant experience in the same position with the present employer. In those cases, EB-1 or EB-2 petitions may be the only options available, as neither extraordinary ability petitions nor national interest waiver petitions require a job offer or employer sponsorship.

For those who do have a job offer, and an employer willing to sponsor a labor certification application, there are several factors that when examined closely, may tip the scales in favor of EB-1 and EB-2 petitions. Perhaps most misleading are the timing issues. Unless the employer has already completed the substantial recruitment necessary to satisfy PERM, it will likely take at least three months before an application is ready for filing. Before filing, the employer must obtain a prevailing wage from the State Workforce Agency (SWA) ; place a 30-day job order with the SWA and file no less than 30 days after the end of the job order ; post an internal notice within the employer’s premises for 10 business days and file no less than 30 days after the end of the posting period ; and engage in substantial recruitment, most or all of which must have occurred more than 30 days before filing. Assuming no audit and an approximate two months processing time, the alien might be in a position to file a concurrent immigrant visa petition and application for adjustment of status within about five to six months after beginning the recruitment process. If there is an audit, however, the delay will be much more significant — likely a minimum of several additional months.

Also misleading is the perception that PERM may be less speculative than EB-1 or EB-2 petitions. While this may be true in very clear cut shortage occupations where 100% of the prevailing wage is offered, this is more the exception than the rule. Where cases hinge on business necessity , an audit is likely. In fact, any situation that increases the possibility of an audit, such as where an alien gained required experience with the same employer , applications involving small or closely-held employers , or applications with alternative experience requirements , should tilt the balance further in favor of the EB-1/EB-2 petition option. Such an audit not only eliminates the advantage of prompt processing time, but given that an audit can be requested at any time, it also reduces the certainty of an approved petition. Furthermore, even an approved PERM application is subject to revocation for five years. Finally, at least for the near term, a multitude of issues relating to PERM applications have gone unanswered by the Department of Labor, rendering PERM applications particularly hazardous pending clarification.

In fact, the speculative nature of the job market itself raises doubts as to the reliability of an approved labor certification. The PERM labor certification application, unlike the self-sponsored EB-1 or EB-2 petition, renders the alien subject to the whims and business vicissitudes of his employer. If the alien is laid off, terminated, or subject to a reduction in force, the alien loses eligibility. If the employer is required to reduce wages at a future date, the alien can lose eligibility. If the employer undergoes a reorganization that results in a different entity employing the alien, the alien may lose eligibility. If the employer changes location, or transfers the alien to a different location, the alien may lose eligibility. None of these is a factor for a self-sponsored EB-1 or EB-2 petition, which is completely devoid of employer sponsorship or involvement. Other than loss of job and possibly corporate reorganization, none of these is a concern in the case of an employer-sponsored EB-1 or EB-2 petition.

In addition to the disadvantages and uncertainties related to PERM, the EB-1 or EB-2 petition has a number of clear advantages:

  • No job offer is required
  • There is no prevailing wage issue
  • There is no risk of an audit
  • The often substantial expenses of recruitment are not incurred
  • There is no issue of availability in the U.S. labor market
  • There is no problem if the alien is promoted or changes location, which could require a new labor certification application
  • There is no problem if the alien changes employers (assuming a self-sponsored petition).

Another advantage is the option of submitting multiple immigrant visa petitions at the same time. Nothing prohibits submitting an EB-1 extraordinary ability petition, an EB-1 outstanding researcher petition, an EB-2 national interest waiver petition, and an EB-2 Schedule A, Group 2 petition at the same time. This strategy gives the alien four chances to be successful, compared to one chance with a labor certification application. In fact, PERM requires withdrawal of a pending case upon the filing of a new PERM application.

Perhaps the biggest advantage of the EB-1 or EB-2 petition is timing. An EB-1 or EB-2 petition allows the alien to file the I-140 immigrant visa petition and I-485 adjustment of status application immediately upon obtaining the necessary documentation to prove her extraordinary or exceptional talents (assuming no quota backlog). As a practical matter, this preparation can often take two or three months. However, the timing advantage compared to the PERM labor certification application can still be significant. Once the documentation is gathered and the case is filed, the alien is eligible for the derivative benefits of a pending adjustment of status application. These advantages include:

  • Employment authorization for the alien. This is especially critical for an alien who does not have or will lose employment authorization, such as an H-1B whose six years is expiring.
  • Employment authorization for the alien’s spouse.
  • Advance parole travel authorization. This is especially critical for nationals of certain countries for whom there may be long delays and serious issues involved in attempting to obtain visas.
  • Obtaining the benefits of adjustment of status portability. As of the date of the preparation of this article, USCIS has not formalized a position regarding whether adjustment of status portability starts 180 days after the filing of the I-485 or begins on the latter of that date or the I-140 petition approval. No matter which date is ultimately found to be the key date for portability purposes, the employer-sponsored EB-1 or EB-2 beneficiary will be eligible to switch positions or switch employers sooner than the beneficiary of the labor certification application because of the earlier filing of both the I-140 and the I-485.

Two other groups of employees gain particular advantages from the possibility of earlier filing of the I-140/I-485 offered by the EB-1/EB-2 alternative:

  • Employees with children who are at risk of aging out (turning 21) during the permanent residence processing. Under the Child Status Protection Act , filing the I-140 freezes the child’s age as of the date of filing. This advantage could be lost during the time it takes to process a PERM labor certification application.
  • Employees who are out of status, or are about to become out of status. Such employees need to be concerned with the provisions of INA ‘245(k). Under this statutory section, the alien can be out of status for up to 180 days since his or her last entry and still be eligible for adjustment of status. The period of time out of status is considered to end upon the filing of the I-140/I-485. Some aliens will lose ‘ 245(k) eligibility during the time the labor certification application is pending. For these aliens, filing a concurrent I-140 and I-485 in the EB-1 or EB?2 category is necessary, not a matter of choice.

For some employees, there is urgency to filing either a labor certification application or an immigrant petition at the earliest possible date. Specifically, an employee who is approaching the end of her fifth year in H-1B status must file either a labor certification application or immigrant visa petition before the sixth year begins. Although an H-1B is normally limited to six years in H-1B status , one year extensions are possible if a labor certification application or immigrant petition was filed at least one year before the end of the sixth year. In such a case, it may be necessary to weigh the likely time necessary to complete the recruitment process and file a labor certification application against the time necessary to prepare an EB-1 or EB-2 petition package, replete with the necessary documentation and reference letters.

The onset of employment-based quota backlogs raises additional issues. There are at least three considerations engendered by this development:

  1. It is critical to get the I-485 filed while the quota is current. If the I-485 is filed and then the quota becomes backlogged, the I-485 remains pending ; and it is possible to continue to obtain and extend employment authorization and advance parole. On the other hand, if the quota backlog occurs before the I-485 filing, the I-485 (and the concomitant employment and travel benefits) cannot be filed until the alien’s priority date is reached. The concurrent EB-1 or EB-2 adjustment of status filing assures this result. The PERM filing delays the filing of the I-485 by at least several months, which could mean a several year delay in the I-485 filing if quota backlogs develop.
  2. It is critical to get the earliest possible priority date if the quota is already backlogged. In that event, speed of processing is not a critical issue.
  3. Although the EB-2 category may become backlogged for some countries, the EB-1 category is unlikely to become backlogged for the foreseeable future. Accordingly, a self-sponsored EB-1-1 extraordinary ability petition or an employer-sponsored EB-1-2 outstanding researcher/professor petition provides for greater protection against significant delays engendered by quota backlogs.

There certainly may be other issues in specific cases that tilt the balance in favor of either a PERM labor certification application or an EB-1 or EB-2 petition. However, most aliens who have a colorable claim to extraordinary or exceptional ability remain well advised to pursue those options, even after the implementation of the PERM labor certification program.