Introduction

Most foreign-born IT employees work in the United States on H-1B temporary visas prior to qualifying for permanent residency. These workers need a PERM application (labour certification) before an I-140 immigrant visa petition can be filed on their behalf.

There are several important time periods and deadlines to keep in mind throughout the process. PERM applications must go through a regulatory processing period that must be completed within 180 days from start to finish. PERM recruitment starts on the first day that an advertisement, notice of filing, job order or other recruitment procedure begins.

When PERM recruitment is finished, the employer must wait 30 days before the application may be filed. The 30 days must occur within the 180-day overall processing period. An exception to this rule is that professional positions may have one form of ongoing recruitment during the last 30 days before filing.

Factors to consider

Theoretically, a PERM application may be initiated and filed in as little as 61 days: 30 days for the job order at the state workforce agency – with all other recruitment procedures occurring concurrently – followed by the 30-day waiting period. Filing may then occur on the next day, which can be the 61st day.

In practice, the process is complicated, consisting of:

  • requesting a prevailing wage determination; and
  • the placement of ads in newspapers and journals with pre-publication lead time.

Red tape needs to be factored in when requesting:

  • 30-day job orders with state workforce agencies;
  • three additional professional recruitment efforts selected from:
    • media;
    • online sites;
    • on-campus placement;
    • job fairs;
    • employee referral programmes; or
    • additional journals and newspapers;
  • in-house notices of filing;
  • a review of resumes for job applicants; and
  • the preparation of a final recruitment report.

Approval times

Following electronic filing, a PERM application may take six to 12 months to be approved if there are:

  • no audits;
  • orders for supervised recruitment;
  • denials; or
  • other complications.

Applications submitted by post take longer because the Department of Labour must key them into the electronic system. Upon approval, the I-140 immigrant visa petition must be filed with the United States Citizenship and Immigration Services (USCIS) within 180 days of the approval date. If not, the PERM approval expires and a new application must be filed starting from the very beginning with all the recruitment and waiting periods observed.

Amended I-140 petition

Once an I-140 immigrant petition has been timely filed, a new amended petition may be filed at any time. There is a box to check on the I-140 form for this purpose. Amended petitions are useful if the employer wants to file more than one petition (eg, a second and third preference for the same PERM approval), especially if the employer is in doubt about the viability of a second preference petition due to the type of advanced degree or evaluation provided for the foreign worker to qualify for second preference.

A third preference immigrant petition requires only two years of education, training or experience or any combination thereof. The two years may be quantified as the attainment of:

  • an associate's degree;
  • a bachelor's degree; or
  • two years of any other post-secondary education.

A second preference petition requires an advanced degree or extensive documentation of exceptional ability. The same PERM can be used for both preference categories.

There is no time limit to file an amended I-140 petition and an employer may file as many petitions as it wants. While this may seem counterintuitive, there are instances when petitions are denied due to a delay in documentation provided to the USCIS by the employer or because of a failure to provide adequate documentation or legal arguments in the opinion of the examiner.

The filing of a new I-140 can correct unjust results, because USCIS issues denials 'without prejudice', meaning that a new petition can be filed at any time and adjudicated on its own terms.

Porting to new H-1B employer

It is commonly known that H-1B workers can also port to new H-1B employers under the terms of the American Competitiveness in the 21st Century Act. However, if they port to a new employer before they apply for adjustment of status or before the I-140 immigrant visa petition from the old employer is approved, the approved PERM application and I-140 petition cannot be transferred to the new employer. To effect porting to a new employer, the immigrant petition filed by the old employer must not only be approved, but at least 180 days must have passed from the date when the H-1B worker applied for adjustment of status.

Although an H-1B worker can work for the first employer on a temporary H-1B and then for a new employer as a permanent worker based on a PERM and I-140 approval, the worker must maintain status at all times by working for an H-1B authorised employer or until obtaining an employment authorisation document, issued as part of the adjustment of status process. While foreign workers may port to more than one employer, their movement may be scrutinised as to proper maintenance of status and bona fide intentions to work for the new petitioning employer.

Priority dates

Priority dates for second and third preference workers are established when the PERM application is first filed with the Department of Labour. This would occur after the recruitment period is complete, but before the actual approval of the PERM application. Amended petitions always maintain the same priority date – as the priority date comes from the PERM filing date and not from the date of filing the I-140 petition.

Further, an approved second or third preference petition – filed by a previous employer – may be used to establish the priority date for an I-140 petition filed by a new employer, even if the new petition has not been amended.

If an employer files a PERM and I-140 petition for a foreign worker and the foreign worker decides to port to a new employer, the priority date from the case filed by the first employer can be carried over to establish the priority date for the case filed by the new employer.

H-1B workers from oversubscribed areas like India can take solace in the fact that porting of priority dates enables them to move from third to second preference if they gain additional qualifications after arriving in the United States (eg, years of experience or advanced diplomas).

A new position must also have higher qualifications. The minimum entry level for second preference is an advanced diploma, usually considered the equivalent of a US master's degree or a bachelor's degree plus five years of progressive experience. Newly qualified workers can seek to obtain a job offer for a new position with either of these higher qualifications.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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