Frequently Asked Questions - PERM - Labor Certification

  1. Indefinite H-1 Extensions( on yearly basis) Based On PERM Appeal
  2. Foreign Labor Certification Questions and Answers
  3. PERM Denial—Possible Defect in Form
  4. Survey Methodology–Frequently Used Alternate Surveys
  5. Rejection of Alternate Wage Surveys that are Incomplete or Lack Information
  6. Audits about Telecommuting
  7. Follow up on PERM Account Registration
  8. Duplicate PERM Certifications
  9. Bona Fide Reasons for Withdrawal during Supervised Recruitment (SR)
  10. Use of Monster.com for Supervised Recruitment (SR) Cases
  11. Consolidation of Identical Cases for Supervised Recruitment
  12. Processing Times or Delays in Supervised Recruitment (SR)
  13. Qualification for Labor Certification
  14. PERM Audit & H1 extension beyond 6 yrs
  15. Restart the green card under EB-2 category
  16. Can I process I-140 with previous company
  17. Avoiding PERM through EB-2 category
  18. PERM petition and employer
  19. PERM Audit and H-1 Expired
  20. Holding Company Stocks on TN Visa
  21. Perm process during OPT
  22. EB-3 category
  23. Can I change jobs and file PERM and I-140 under EB-2
  24. Job Change after I-140
  25. Can EB3 PD be carried to new EB2?
  26. PERM Audit
  27. Guidelines for 7th year extension
  28. EB2 Schedule A question
  29. PERM application
  30. Green Card for employees
  31. Can I file I-140 under EB2 if PERM is filed under EB3
  32. Labor filing and F-1
  33. Priorty date
  34. PERM processing times
  35. Labor certification and DV
  36. PERM - reduction in work hours, wages
  37. PERM when company has freeze in hiring
  38. EB-2 Eligibility
  39. PERM times
  40. Must we withdraw a PERM application if the employee is laid off?
  41. PERM classification EB2
  42. H-1 extension while PERM pending
  43. When to file for 7th year extension (Timing)?
  44. PERM and H-1 extension
  45. Labor Cert - successor in interest
  46. PERM Process timeline
  47. Mandamus against PERM delays
  48. Obtaining H-1 Extension beyond 6 years
  49. Should you be applying for employment-based green card in this economy?
  50. L-1B applying for green card
  51. Mandamus against PERM delays
  52. DOL gives PERM processing dates
  53. DOL Comments on PERM Processing Times
  54. Promotion during the green card process through PERM
  55. Multiple Labor Certifications
  56. PERM News July 15 2008 DOL Meeting
  57. PERM Through Relative Owned or Controlled Company
  58. Can I go back and join an employer who has my I-140 approval, but I left them
  59. Using Green Card Experience Gained with End Client
  60. Will H-4 EAD Rule be revoked?
  61. Extension of H-1 beyond six years, gap in H-1, late in filing PERM, etc.
  62. Is percentage arrangement acceptable as salary (H-1 and PERM)
  63. The Proposed I-140 EAD Rule - FAQ's
  64. No loss of priority date if employer revokes I-140; Green card through future employer
  65. Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status
  66. Physician filing green card
  67. Priority date loss upon revocation of I-140
  68. For PERM is formal certificate required or completion of degree is enough
  69. Changing employers - what immigration documents should I keep
  70. Refiling I-140 using old PERM (after 180 days)
  71. PERM Audit and Related Questions
  72. Indian Experience While Filing PERM
  73. Familial Relationships
  74. I-140 Pending Approval
  75. Retaining PD
Audits about Telecommuting

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.

PERM Audit & H1 extension beyond 6 yrs

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

PERM Audit and H-1 Expired

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.

Mandamus against PERM delays

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.

PERM Audit and Related Questions

It IS possible for your green card to remain unaffected even after the corporate change over.

Indefinite H-1 Extensions( on yearly basis) Based On PERM Appeal

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

Foreign Labor Certification Questions and Answers

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.

PERM Denial—Possible Defect in Form

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.

Survey Methodology–Frequently Used Alternate Surveys

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.

Rejection of Alternate Wage Surveys that are Incomplete or Lack Information

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.

Audits about Telecommuting

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.

Follow up on PERM Account Registration

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.

Duplicate PERM Certifications

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.

Bona Fide Reasons for Withdrawal during Supervised Recruitment (SR)
Use of Monster.com for Supervised Recruitment (SR) Cases

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.

Consolidation of Identical Cases for Supervised Recruitment

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.

Processing Times or Delays in Supervised Recruitment (SR)

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.

Qualification for Labor Certification

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.

PERM Audit & H1 extension beyond 6 yrs

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

Restart the green card under EB-2 category

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.

Can I process I-140 with previous company

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.

Avoiding PERM through EB-2 category

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

PERM petition and employer
PERM Audit and H-1 Expired

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.

Holding Company Stocks on TN Visa

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.

Perm process during OPT

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.

EB-3 category

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

Can I change jobs and file PERM and I-140 under EB-2
Job Change after I-140

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.

Can EB3 PD be carried to new EB2?

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.

PERM Audit

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.

Guidelines for 7th year extension

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.

EB2 Schedule A question

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.

PERM application

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

Green Card for employees

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

Can I file I-140 under EB2 if PERM is filed under EB3

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.

Labor filing and F-1

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

Priorty date

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

PERM processing times

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

Labor certification and DV

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.

PERM - reduction in work hours, wages

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.

PERM when company has freeze in hiring

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.

EB-2 Eligibility

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

PERM times

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.

Must we withdraw a PERM application if the employee is laid off?

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.

PERM classification EB2

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.

H-1 extension while PERM pending

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

When to file for 7th year extension (Timing)?

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.

PERM and H-1 extension

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).

Labor Cert - successor in interest

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.

PERM Process timeline

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.

Mandamus against PERM delays

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.

Obtaining H-1 Extension beyond 6 years

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

Should you be applying for employment-based green card in this economy?

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.

L-1B applying for green card

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.

Mandamus against PERM delays

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.

DOL gives PERM processing dates
DOL Comments on PERM Processing Times

In a recent meeting, USDOL has stated:

Quote:

Promotion during the green card process through PERM

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?

Multiple Labor Certifications

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.

PERM News July 15 2008 DOL Meeting

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

PERM Through Relative Owned or Controlled Company

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.

Can I go back and join an employer who has my I-140 approval, but I left them
Using Green Card Experience Gained with End Client

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...

Will H-4 EAD Rule be revoked?
Extension of H-1 beyond six years, gap in H-1, late in filing PERM, etc.
Is percentage arrangement acceptable as salary (H-1 and PERM)

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.

The Proposed I-140 EAD Rule - FAQ's

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.

No loss of priority date if employer revokes I-140; Green card through future employer

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

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

Green card pending conversion to and from H-4 EAD – H-1; Filing green card while in F-1 status

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

https://youtu.be/H_VV9kV_lOg?t=65 

Physician filing green card

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

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

Priority date loss upon revocation of I-140

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

For PERM is formal certificate required or completion of degree is enough

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

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

Changing employers - what immigration documents should I keep

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

Refiling I-140 using old PERM (after 180 days)

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

https://youtu.be/ZBJhcjjIrzs?t=1548

PERM Audit and Related Questions

It IS possible for your green card to remain unaffected even after the corporate change over.

Indian Experience While Filing PERM

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

generally speaking, you can use the experience gained with an employer who has a tax ID number other than your petitioning employer. - See more at: http://www.immigration.com/comment/14003#comment-14003
Familial Relationships

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.

I-140 Pending Approval

The priority date is yours the mo

Retaining PD

Employees retain PD even if the o