Builders and Contractors Exchange
Weekly Bulletin: 27 Mar 2006
Recent Developments In The Employment-Based Green Card Process
By: Mara Mijal
For a foreign-born worker to obtain a green card based on U.S. employment, the Department of Labor (“DOL”) must first determine that there is no U.S. worker who is qualified and available to fill the position offered to the foreign-born worker. This process is called “labor certification.” In March 2005, the DOL implemented a new labor certification system called “PERM,” which was designed to improve the labor certification process for employment-based green cards.
The new PERM system requires employers to conduct recruitment before filing their applications, similar to a procedure under the previous labor certification system known as “reduction in recruitment.” However, applications for “professional occupations” require five different types of recruitment as provided in the regulations. The PERM regulations provide a list of occupations that the DOL has determined are “professional;” further, the DOL has pre-determined the minimum education and experience requirements for all positions. The DOL states that their goal is to process PERM applications in 45 to 60 days, and thus far, the DOL has generally met this goal. Previously, it took the DOL up to three to five years or more to process labor certification applications; therefore, despite its increased recruitment requirements and reduced flexibility, PERM has been welcomed by many employers and employees because of its speedier processing times.
The PERM regulations also provide for converting a case that was filed under the old rules. However, despite the appeal of the drastically reduced processing time, it is not always advisable to convert an older case to the PERM system. First, refiling under PERM requires new advertising and recruiting that complies with the new PERM rules, which is typically time-consuming and expensive. Second, conversion requires withdrawal of the older labor certification case, which entails a risk of losing the case’s priority date (i.e. the date the case was initially filed). Losing the older priority date can have a substantial negative impact on the case because of the recent visa backlogs in the employment-based immigration categories, which mean that even if a labor certification is approved, the employee’s final green card application may not be filed until the case’s priority date becomes current. Thus, given the substantial nature of the backlogs, there is currently very little practical benefit in converting most cases to PERM.
In summary, while PERM has drastically reduced the processing time for labor certifications, it has created new issues that call for careful examination. Further, the current employment-based visa backlogs have made it still more difficult to navigate the complex law of employment-based immigration. If you have an employee for whom you wish to begin, or have already begun, the green card process, you should consult with an immigration attorney regarding the new PERM process and how to ensure that your employee maintains a valid status in the United States.
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This article is meant to bring awareness to this topic and is not intended to be used as legal advice.