PERM - Labor Certification

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com.

Is percentage arrangement acceptable as salary (H-1 and PERM)

Detailed question:

The physician group I'm talking with are looking to hire me on to work alongside them, and they would not actually pay me a direct salary. I would bill insurance for each patient seen, and the practice would take a certain percentage and give me the rest. Would this be allowed? Or do I have to actually receive a salary from the future employer? My understanding is that as long as the potential employer can show the ability to pay the prevailing wage via a business income tax return, that is all that is needed. Whether or not I actually get paid and how much I get paid once the green card is approved, is irrelevant, correct?

Answer:

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.

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The Proposed I-140 EAD Rule - FAQ's

Detailed question:

Answer:

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. 

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

Detailed question:

I have my perm labor and I-140 approved through EMPLOYER A (Consulting Firm). Priority Date June 2013. If I am going to change Employer, EMPLOYER A is going to REVOKE MY I-140. I heard from your last conference call that i will be loosing my priority if I-140 is revoked by employer.I am close to 5th year of H-1. so cant take chances. If I move to FT position in the next 6 months and say my current employer revokes I-140. I will not be able to get extension for H-1 beyond 6 years.

Answer:

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.

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

Detailed question:

1) My wife is currently on H-1B. I am also on H-1B with approved I-140. My wife's employer is willing to Start GC process for her. I understand that GC is for future employment.<br> My wife is willing to Move to H-4 EAD. Say my wife's employer initiated her GC process when she is on H-1. Once the perm is filed by wife's employer, will she be able to convert from H-1 to H-4 EAD. Does this has any affect on her ongoing GC process. Is it safe for some one to changes status from H-4 to H-1 and H-1 to H-4 in between PERM and I-140 process.<br> 2) My brother is on F-1 in OPT status. Can my brother's employer start GC process for him while he is on OPT. I have some knowledge of the complications involved in Starting GC process on F-1. The main reason behind this question is to reserve a spot for GC process. That way my brother can get a earliest priority date, his employer would start GC process 2 years down the road when he is on H-1B. <br> What is the safe route for some one like my brother to get a earliest priority. Do they have to wait till H-1B to get in to GC process Queue

Answer:

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.  

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Physician filing green card

Detailed question:

1. I am a Canadian physician on an H-1B (never been on J-1) which expires June 30th, 2017. I am currently doing a 2 year fellowship. I'm contemplating pursuing the physician NIW process vs EB-2 through potential employer. For EB-2, my understanding is that I need to be eligible for a full-time physician position on the day the employer submits the ad. Since I won't complete my general residency until June 30th, 2016, my potential employer cannot begin recruitment until July 1, 2016, correct?<br> 2. In your experience, is 1 year enough time to complete the EB-2 process?

Answer:

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.


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Priority date loss upon revocation of I-140

Detailed question:

1) Is there any difference between I-140 revoked by employer - vs - I-140 revoked by USCIS (say for fraud or misrepresentation) with respect to being able to retain the priority date with the new employer ?<br> 2) Changing from Employer A to Employer B - If Employer B files the PERM before I-140 by employer A is revoked by the employer A - would that help retain the PD corresponding I-140 to employer A ? In other words, are there any specific scenarios in this case - where the PD could be retained based on the first I-140 approval ?

Answer:

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

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

Detailed question:

1. I am on H-1B with my I-140 approved in EB-3 with priority date is Sep 2013. I have 12+ years experience in the field. I am getting an opportunity from a company. They are ready to start my green card process. I have just completed my master degree(MCA) from India. Waiting for my degree certificate, which would take a month or two. <br>2. Can my new employer do the H-1B transfer now based on my BSc degree (Computer Science) and once I get the master degree certificate, can they start the green card process in EB-2? Or do I need to wait for my master degree certificate before the H-1B transfer?

Answer:

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.

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Changing employers - what immigration documents should I keep

Detailed question:

Currently on my H-1B post 6-year based on approval of PERM and I 140 under EB - 2. Would be In the process of switching jobs for some personal / professional reasons very soon.<br> 1) What documents would I need to have with myself - corresponding to PERM and I-140 - so that I can retain my priority date and start another green card process with a potential new employer ? <br> 2) For the documents above - would I need to have the originals or the photocopies ?

Answer:

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.

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

Detailed question:

I have questions related to I-140 denial & refile.<br> My first I-140 got denied in Jul 2013 due to 'unknown' reasons to me, but I suspect it's A2P. After 2 years now they told me that they are refiling it and will not lose the PD if approved. They didn't ask any info from me. Now my questions are:<br> 1) Is it possible to 'refile' I-140 with same old PERM after 2 years of first I-140 rejection?<br> 2) How many times can we 'refile' I-140 on same PERM?<br> 3) Can we do 'refile' under premium?

Answer:

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

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

FAQ Transcript:

The rule is once PERM is approved the I-140 must be filed within 180 days. If you do not then your PERM is extinguished and you will have to start all over again. However if you file I-140 within 180 days and then for some reason you have to file again, then 180 day limit does not apply. Let me give you an example: Let us say you’re I-140 was denied, you filed it within 180 days and you forgot to submit an education evaluation or because of some technical reason or a serious reason such as the inability of the employer to prove that they have the capacity to pay your wages. You can file an I-140 three years down the line. You are no longer confined to the 180 day deadline because when the first time around when you filed you were confined to the 180 days deadline.

Now answer to question 1: Yes.

Answer to question 2: No limit that I know of as long as it is done in good faith. 

Answer to question 3: This is a tricky question. USCIS has said if you still have the original of the PERM and it has not been archived then they will take the premium processing only if they have the originals in their possession. If it was never submitted or if the case has been shelved they will not take premium processing.

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PERM Audit and Related Questions

Detailed question:

1) I recently submitted a PERM with company A which is wholly owned by a parent company B. Company B will soon absorb company A which will cease to exist as an independent company and will just become a new department within company B. How will my PERM be affected? <br> 2) If my PERM is audited and I don't want to go through the audit, will it be a good idea to change employers and submit a new PERM from scratch? What are the odds of being selected for an audit twice in a row?

Answer:

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. 

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Indian Experience While Filing PERM

Detailed question:

My current employer is failing the GC. Below is the job requirement. My total experience is with the current employer only (2.5 years in INDIA+4.5 years in USA)<br> Job requirement:<br> Education: Master’s degree, or equiv., in computer information systems or related field Experience: At least 1 year in position offered or in design defect fixes/enhancements I have US equivalent Master degree. My attorney said for the experience, we can show your current employer INDIA experience(2.5 years for which i worked in India for the same employer and came USA for the same employer). Can we show current employer India experience while filing PERM?

Answer:

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
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Familial Relationships

Detailed question:

When should an employer mark "yes" when responding to the Question C.9: "is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators?"

Answer:

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

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I-140 Pending Approval

Detailed question:

I am currently on second year of my H-1B. My PERM is approved with a priority date of March 2013; I-140 is filed and pending approval. I am hoping this would be approved in July 2014. My question is I am planning to switch employer. Can I carry over my priority date with new employer? If so, are there any conditions like minimum period to wait after I-140 is approved to carry over the Priority dates to new employer?

Answer:

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

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Retaining PD

Detailed question:

Approved I-140 having PD December 2012 with company A. Currently on 6 year H-1B. Will be transferred to company B. I guess I will be getting three year extension with approved I-140. Can I retain old PD once GC process is started by company B, even if company A withdraw I-140 ?.

Answer:

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. 

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

Detailed question:

Can we apply for indefinite H-1 extensions( on yearly basis) based on PERM appeal as long as your case is still in appeal?

Answer:

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

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Foreign Labor Certification Questions and Answers

Detailed question:

1. What is the Foreign Labor Certification Process? 2. How long will the employment-based visa process take? 3. Are there any employment-based immigration fees? 4. How do I find out the status of my permanent case?

Answer:

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.

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PERM Denial—Possible Defect in Form

Detailed question:

I am currently in my 7th year of H-1B visa. I work as a software developer full-time with a reputed software and ATM (Automated Teller Machine) hardware company. My perm with DOL just got denied; the reason mentioned was the SWA (State Workforce Agency) Ohio job order does not mention minimum experience requirements. However, the ETA form mentions 60 months of experience, and this does not appraise US workers from applying. However, the lawyer argues that there was no room to mention experience requirements in the Ohio job order.

Answer:

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.

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Survey Methodology–Frequently Used Alternate Surveys

Detailed question:

Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

Answer:

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.

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Rejection of Alternate Wage Surveys that are Incomplete or Lack Information

Detailed question:

Applicants have reported frequent rejections of alternate wage surveys that have been submitted to the prevailing wage unit in support of the ETA 9141. Several of these rejections have not been due to a specific deficiency of the survey or because the survey was not a match to the position, but because not all leveling information was submitted, or because the submitted survey data was incomplete. Rather than rejecting the survey due to missing survey information, could the National Prevailing Wage Center (NPWC) instead issue a request for the missing information, so that employers are able to correct the problem, rather than have to submit a new wage request and wait two months for a decision?

Answer:

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.

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Audits about Telecommuting

Detailed question:

Recently, DOL has begun to issue audits with the following language: “The foreign worker listed on the ETA 9089 resides in [residence location], section H of the 9089 provides [work location] as the worksite. Has DOL explained how the foreign worker performs the job duties of the job opportunity given the distance between [residence location] and [work location].Is the employee permitted and/or expected to perform the duties of the job opportunity listed on ETA 9089 from his residence and/or his place of choosing?” In many cases, the two locations are quite close and are clearly within a normal commuting distance (e.g. Atlanta and Marietta, Georgia – distance approximately 20 miles; Palisades Park and Parsippany, New Jersey – distance approximately 30 miles). In one case, the work and residence locations were less than two miles apart. Has DOL considered conducting an initial review of the distance between the residence location and work location before issuing the audit?

Answer:

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.

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Follow up on PERM Account Registration

Detailed question:

Applicants often have difficulty getting a response from the various email help desks (sr.processing@dol.gov, plc.atlanta@dol.gov, etc.) beyond a boilerplate acknowledgement of the inquiry. This lack of substantive response can be particularly challenging when an employer is trying to create a new PERM filing account, or if the employer’s contact is locked out of their online PERM account. Has DOL provided any details on how e-mail inquiries are handled by each of the help desks? Does DOL have required service response times? Would it be possible for a dedicated e-mail to be created to follow-up on specific matters, such as PERM account registration problems? As an example, USCIS has a dedicated follow-up e-mail for service requests, but this e-mail can only be used after a service request is made, and after a set period of time goes by without a response.

Answer:

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.

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Duplicate PERM Certifications

Detailed question:

Several people have reported receiving two certifications of the same PERM application, with different validity dates. In most (but not all) of these cases, when the case was first approved, no hard copy ETA 9089 was received by the attorney in the mail. When the case was “recertified,” a hard copy 9089 was generated. Has DOL identified what caused these duplicate approvals? Has DOL also communicated this problem to USCIS, as this could impact processing of an I-140 petition that was filed with a request that USCIS contact DOL to obtain a “duplicate” certification?

Answer:

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.

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Bona Fide Reasons for Withdrawal during Supervised Recruitment (SR)

Detailed question:

Employers may choose to withdraw cases undergoing SR for many reasons, such as the employee terminating his employment, the employee obtaining a green card through other means (such as marriage), or the costs of the required recruitment. In determining any employer-wide consequences of withdrawal during the SR process, does DOL consider the explanation as to why the SR case is being withdrawn? How can an employer best provide an explanation why the SR case is being withdrawn?

Answer:

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.

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Use of Monster.com for Supervised Recruitment (SR) Cases

Detailed question:

Several newspapers (Boston Globe, San Francisco Chronicle, Chicago Sun-Times, etc.) place their online ads on Monster.com. When the SR instructions direct the placement of an ad on these newspaper websites AND on Monster.com, this means placement of the same listing twice on the same website, which is redundant. Has DOL indicated that a single advertisement on Monster.com is sufficient when the required newspaper uses Monster.com to place job advertisements online?

Answer:

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.

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Consolidation of Identical Cases for Supervised Recruitment

Detailed question:

DOL has indicated that it would make sense to consolidate recruitment for Supervised Recruitment (SR) cases that are identical. Has DOL made any progress on publishing a standard that can be followed to consolidate recruitment for SR?

Answer:

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.

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Processing Times or Delays in Supervised Recruitment (SR)

Detailed question:

The processing of supervised recruitment cases is still extremely slow. Cases filed directly into supervised recruitment in January and February 2012 have still not received the initial communication from DOL or any recruitment instructions. Based on reports, it appears that DOL is not following FIFO (first in, first out)on SR cases, as there are SR cases with priority dates ranging from May 2011 to October 2011, and draft ads/ad corrections have been submitted as early as February 2012 and as late as July 2012. Has DOL provided details on SR processing dates and times?

Answer:

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.

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Qualification for Labor Certification

Detailed question:

Who is considered a qualified U.S. worker for purposes of a Labor Certification?

Answer:

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.

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PERM Audit & H1 extension beyond 6 yrs

Detailed question:

My employer applied PERM (in 6th year) in October 2011 EB-2 Category and it picked for random audit in Jan 2012, employer asked me to send signed ETA form to respond to Audit question with in 2 weeks. They said its random computer audit and has to respond with paper documents. I am already in 6th yr and my H-1 get expired by May 22, 2012 is it possible to go for H-1 extension beyond 6th year while PERM is still in Audit status.

Answer:

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

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Restart the green card under EB-2 category

Detailed question:

My Labour is filed in EB-3 & my PD is Oct-2003. I got my EAD in 2007. I have a BE degree from India & a work experience of 13 years. 5 in India & 8 in USA. Am I eligible for porting to EB-2? If I file a fresh EB-2 what is the process? Is it just the Perm process & I- 140 or do I need to file I- 485 again.

Answer:

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.

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Can I process I-140 with previous company

Detailed question:

I got I-140 cleared through current company and labor approved from previous company. Can I process I-140 through previous company (to get PD to 2008)?

Answer:

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.

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Avoiding PERM through EB-2 category

Detailed question:

If one applies through EB2 category can the PERM also be avoided then?

Answer:

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

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PERM petition and employer

Detailed question:

After a PERM DOL certification petition has been filed for an EB-2 application for someone currently on H1-B, at what stage is it safe to change employers without affecting the application process? In other words, will change in employer mean starting the process anew?

Answer:

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...

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PERM Audit and H-1 Expired

Detailed question:

What happens if your H-1 expires before the PERM audit is cleared by DOL. Are we supposed to leave country. I have 20 months of H-1 life left to reach 6 years and my LABOR is in AUDIT status I am just wondering if I get an extension or will I be checked out of USA.

Answer:

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.

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Holding Company Stocks on TN Visa

Detailed question:

I am on TN visa for the more than a year. The company wants to give me some stock option (10-15%). Is that ok to hold stocks of the company you are working for on TN visa, or will it create problem when I apply for renewal of my TN visa. Can I apply for GC on TN visa?

Answer:

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.

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Perm process during OPT

Detailed question:

I completed my master’s degree last summer and started working with a company from 2 months. I am in OPT status right now and I wanted to know, if I am eligible to file for Green Card process with my current employer. If yes can I file in EB2? I have 2 years IT experience in India If no, do I have to wait until I get H1b. Is the Green card process dependent on H1B?

Answer:

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.

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EB-3 category

Detailed question:

I am on EB3 category and have been working in the IT sector for the last 6 years and one year ago I completed my MBA too. I am currently working as a contractor and using my EAD. I am on Adjustment of status right now. Is it possible to change my category from EB3 to EB2?

Answer:

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

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

Detailed question:

Can I change jobs and file PERM and I-140 under EB2 instead prior EB3 with the new employer. How risky the situation is? I can stay with my current employer, but it is going to take at another 3 years to get my GC under EB3. My PD is Feb 2007.

Answer:

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.

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Job Change after I-140

Detailed question:

I am in the 5th year of my H1. My current employer has filed for my PERM under EB-3 category since I did not have 5 years experience before (EB-3 has 6 years backlog though EB-2 queue for me is current). I want to know is it possible to wait for I-140 approval, get 3 year extension with current employer and then switch jobs? Will I be able to get 3 more years on H1 with future employer?

Answer:

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.

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Can EB3 PD be carried to new EB2?

Detailed question:

I filed Perm under EB3 category on 1-Oct-2008. I got an audit. As per your current Perm dates, they are processing Aug'08 audits. Can I file with same employer under EB2? If yes, can I also keep EB3 file running parallelly. Is there a way for me to carry EB3 PD after I-140 Approval,if I file a new EB2? I completed 4yrs 2 months on H1B already. Please suggest me if I can change my employer now to file for EB2 or not. (If there is any way i can carry my EB3 PD for EB2 or not?). My lawyer said they can not change the current EB3 file to EB2 as they did not describe it for EB2 role.

Answer:

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.

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PERM Audit

Detailed question:

My perm application filed on July 2010 and got audit on September 2010. My employer sent audit response on October 2010. When I asked my employer how much time I would take then he said that now a days USCIS response within 3-4 months for new cases. How long does a PERM audit take?

Answer:

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.

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Guidelines for 7th year extension

Detailed question:

I could not find any guidelines for 7th year extension with the DOL PERM Program. In the six month period - less than 365 days but more than 180 days from the expiry of the six-year limit on my H1B, my company started the PERM process. In that six month period we got an approved I-140 and filed for Adjustment of Status. Would I qualify for 7th year extension ? Please note that I am a citizen of India and I thought there was also a provision for "Per Country Limit".

Answer:

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.

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EB2 Schedule A question

Detailed question:

My PERM application just got denied due to the recent layoff in my company. Can I apply EB2 (schedule A) to bypass the labor certification step? Will the recent PERM denial affect the Schedule A application? Is it ok to submit the schedule A application soon or I have to wait for a certain time period?

Answer:

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.

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PERM application

Detailed question:

My company said they filed the PERM application on June 30th. I asked them to send the status a month ago. The sent me a message saying that it has Prepared status in the application and the overall status as in process. Is it how it looks?

Answer:

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

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Green Card for employees

Detailed question:

If a company is willing to sponsor green cards for a number of valuable employees, currently working with temporary worker visas, does it reduce the chances of success? (like applying to 4 to 5 employees simultaneously)

Answer:

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

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

Detailed question:

My Perm is filed in October 2008 under EB3 and was audited. As per your current dates, guessing it might be approved in October 2010. 1. I would like to know if I can file I-140 under EB2 as I got my work experience eligible for EB2 category. 2. If I change employer before my PERM approval, will my priority date change? If so, to retain Oct'08 date, till what time, I can be with my employer? 3. Once I-140 is approved, can I change employer or stay for 6 months and then change employer so that my priority date will retain oct'08?

Answer:

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.

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Labor filing and F-1

Detailed question:

My employer has being try to file labor for the last 2 years and finally decided filing as Finance major would be risky & decided to go with engineering specialization.Two major issues: - I have 4 months remaining for 365 day deadline (H1B with time captured outside US would be Dec '11) - My employer is asking me to go on F1 staus to freeze the time on H1.Two questions: Is 4 months enough time for me to find a new employer & ask them to file for labor? Is it legal for me to work on F1?

Answer:

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

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Priorty date

Detailed question:

I have a priorty date(PD)of dec 07 filled under EB3.my I-140 got approved this march.I have 5 years experience as of 2010.can I file as EB2 with another employer as my current employer is not willing and still use the same PD? My first labor certification was in audit for 2 years before they cleared it.Do I have to go through all these steps again with new employer? Can you please explain the process if possible?

Answer:

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

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PERM processing times

Detailed question:

I filled my PERM application at the beginning of May 2009 and my employer check the status of the application and it still says "processing". According to the processing dates shown in your website, they are reviewing August 2009, What that means? Why my application has not been approved or denied?

Answer:

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

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Labor certification and DV

Detailed question:

I am a 2010 DV Lottery winner whose number is projected to be current in August 2010. My employer has started the first stages of the labor certification process. The job has just been advertised. They decided to go on with the process and will stop it when I have the green card in hand. When I go for the DV interview through Consular Processing, will the labor certification process negatively affect my chance to get the DV green card? Will there be any problem? Should I stop my employer from continuing the labor certification?

Answer:

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.

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PERM - reduction in work hours, wages

Detailed question:

I was in the fulltime employee in H1B and filed for the PERM application. after one year and approval of Perm application, The employer reduced my working hour from 1.0FTE to 0.8FTE and filed my H1b extension for the seventh year. My question is that, Is there any affect on my PERM application or in the future I-140 and I485 applications.

Answer:

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.

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PERM when company has freeze in hiring

Detailed question:

PERM process says they should advertise in the paper. What if company has freeze in hiring in certain areas because it already has enough. If they wanted to do GC for its employee, how will the process work.

Answer:

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.

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EB-2 Eligibility

Detailed question:

Had a question regarding the EB-2 eligibility.My Perm was recently approved in EB-2 category.Had a question about education before we file the 140. I've a bachelors in Computing from UK which was a 3 year course and after that I have a Masters from UK in the computing which was a 1 year course. My question- is this qualification eligible of the EB-2 category. Just want to ensure that there is no RFE in 140.

Answer:

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

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PERM times

Detailed question:

I have applied perm under the category EB-3 on Dec-2008 and got a audit on June 2009 and replied the query in june 2009 itself. I have 2 questions here: 1) Can I know the application status .Do i get any file number or something to check my status of this perm application applied under EB-3 category? 2) Requesting you to let me know the probable completion date of my PERM?

Answer:

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.

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

Detailed question:

I am Mr. Jones, the employer. The employee, Mr. Smith, is no longer employed with us because of company's budget issue. However, we may hire him in the near future if circumstance changes. My question: Q1. Do we need to withdraw PERM LC for him that was submitted 2009? Q2. Question from the employee, Mr. Smith: If Mr. Smith filed an immigration benefit (e.g. visa, petition, change of status), does he need to answer YES / NO to the following question: "Has an immigrant petition ever been filed for you?" Basically: does submitting PERM/LC mean filing an immigrant petition? This question is often asked in application.

Answer:

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.

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PERM classification EB2

Detailed question:

I am technology professional with nearly 9 years of work experience. I am currently working as a software consultant in a trading firm in the US and will be graduating from a part time MBA program (concentrations in Finance) this december. If I plan to apply for PERM next year, will I be eligible to apply under EB-2 US Masters degree, given that my MBA in finance will help in understanding complex financial principles and writing algorithms that support day to day trading? In this case, will my previous experience be evaluated?

Answer:

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.

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H-1 extension while PERM pending

Detailed question:

My PERM application was filed last june 2009. My H1B expire last Sept 2009. Can I still renew my H1B? I got 2 extensions of H1B already.

Answer:

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

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

Detailed question:

My 6th year is expiring in Oct2010 and my employer is planning to file PERM in Feb 2010. My questions is 1.Will I be able to file for the 7th yr extension before my 6th yr expires, say in Sep/Oct 2010 (even if my Labor is pending and it hasn't been 365 days yet)?Meaning,can they just go ahead & file for the extension but request for the 7th year to start from Feb 2011 (i.e. 365 day point from the PERMfiling)?Or do I have to actually wait until Feb 2011 to even file for the 7th year extension? 2.If I have to wait til Feb 2011,what start date can my employer request? Oct2010-11 or Feb2010-11?

Answer:

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.

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PERM and H-1 extension

Detailed question:

My company filed my perm application in march 2009 and We did`nt heard any thing from uscis. My H1 is expiring(Max-6 years) in March 2010. My question is when I can file for H1 extension?

Answer:

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).

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Labor Cert - successor in interest

Detailed question:

My Current company (A) applied for my Labor Cert on Feb 2009 and is still in progress. It's been acquired (Company B) and I will be continuing on my same positon/salary with company B that acquired us. As per new perm regulations 20 C.F.R. 656.11(a) and 20 C.F.R. 656.11(b) can company B act as a successor of interest, take over my pending labor and move forward to next step without any issues.

Answer:

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.

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PERM Process timeline

Detailed question:

Is there any way of finding out the time it would take to finish the PERM process? Also, if I change my job after the PERM process is complete, will the date that I got get carried over when I apply from another company.

Answer:

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.

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Mandamus against PERM delays

Detailed question:

DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?

Answer:

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.

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Obtaining H-1 Extension beyond 6 years

Detailed question:

My 6 year period of H1b visa expires in Dec 2010 and my labor application is still pending for approval. It was filed in February 2009. Am I eligible to apply for a visa extension , if so when should I apply for that? I assume I still have time.

Answer:

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.

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

Detailed question:

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

Answer:

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.

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L-1B applying for green card

Detailed question:

My company applied to change my status from L1B to L1A at the same time as filing my GC application. It was approved and the GC only took about 5 months

Answer:

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.

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Mandamus against PERM delays

Detailed question:

DOL seems to have stopped progressing on the Audit cases. Can litigation alleviate this problem and force them to atleast respond?

Answer:

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.

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DOL gives PERM processing dates

Detailed question:

Answer:

For recent updates on PERM processing please click here.


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

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DOL Comments on PERM Processing Times

Detailed question:

Answer:

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.

 

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Promotion during the green card process through PERM

Detailed question:

Taking Promotion in future The current PERM filing is going to be done for the position "Dentist". In the future can she accept a promotion as "Dentist (Lead)" if offered by the company? Will it invalidate the green card application. If we accept the promotion in future can we use the same PERM application without filing another PERM for "Dentist (Lead)" job (jobs are very similar) . She is now a "Dentist(Associate)" and job duties between associate dentist and lead dentist are 70% the same. The lead dentist will have additional duties like oversee day-to-day operations/Supervision.

Answer:

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.

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Multiple Labor Certifications

Detailed question:

I have consulted the local lawyers here but they have failed to answer this question with conviction. Can two Labor applications be filed for me by two companies (current and future employers) at the same time ?

Answer:

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.

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PERM News July 15 2008 DOL Meeting

Detailed question:

Answer:

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

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PERM Through Relative Owned or Controlled Company

Detailed question:

Can a PERM case be filed through a company that is owned or controlled by a relative of the beneficiary?

Answer:

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.

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