PERM in 2010: Is it a good time to file now?
Joe Jian Zhou, Attorney at Law (jzhou@hooyou.com)
PERM Labor Certification is the first step to obtaining a green card in an employment sponsored immigration petition. The PERM application requires the employer to test the local job market and file a PERM petition only if there is a shortage of local workers (U.S. citizens and permanent residents) for the proposed position. During a recession when unemployment is high, an employer may receive more applications for a position than in times when the market is good. In other words, it is more likely that a qualified U.S. worker will be identified in times of economic hardship than under normal conditions. Therefore, it is generally believed that it is difficult to file and receive approval for PERM labor certification in a slow economy.
2009 saw fewer filings for PERM labor certification due to the U.S. economic recession. However, our PERM approval rate in 2009 was still very optimistic (close to 100%, with the exception of one denial due to DOL error, which is now under appeal**). In addition, a smaller number of cases were issued audit notices by DOL in 2009 than in previous years, according to our firm’s records. Moreover, DOL has resumed a steady processing timeframe, around 10 months from the date of filing; although, this is not as fast as expected.
With signs of economic recovery in 2010, we believe that this may be a good opportunity for employers to file PERM cases. The following factors positively impact PERM cases.
- PERM filing may be conveniently combined with the new hiring process
With the recovery of the economy, many businesses are starting to look for new employees to supplement cuts during the past two years. The core issue for filing a PERM is to post a job opening to find U.S. workers; the employer may conveniently combine the new hiring process and PERM together. Advertisements for recruiting new employees may be well designed for an existing PERM employee. For a newly hired alien worker, the employer may use job advertisements to file a PERM case. This is a much less stressful practice for an employer as job postings are not only used to test the local job market, but also for filling recruitment needs. Even if an employer identifies and hires a qualified U.S. worker, the employer still can file a PERM petition for an alien as the employer still has long term needs to find a permanent worker. Not all postings, however, may be used for PERM petitions. In addition, advertisements in newspapers or on websites may not be sufficient as PERM requires 6 types of postings for a professional position. Employers who intend to file a PERM labor certification need to work with an experienced immigration attorney to prepare qualified content that can both attract applicants for business needs and satisfy stringent PERM requirements.
- Shortages in many technical positions remain even during the recession
According to our experience, many employers filed PERM petitions and received approvals during the recession. Even though the unemployment rate was high, there was still a shortage of high tech positions. For example, one would naturally expect the position of a “financial manager” in the New York City area to be swamped with applications due to the large number of layoffs at investment banks this past year. The advertisement called for good quantitative skills and a master’s degree in finance. Surprisingly, this ad did not generate a lot of candidates. With the required skills and education for this position, an employer may come to the conclusion that no qualified U.S. worker is available in the local market. Of course, the Department of Labor has very complicated rules on what kinds of requirements an employer can set. A job posting should be reasonable and not trigger bars such as “excessive requirement”, “unduly restrictive”, or “tailored to alien’s qualifications.” Only seasoned attorneys with an in depth understanding of labor certification rules can successfully navigate through these areas.
- New Changes of PERM in 2010
In 2010, there will be changes to PERM. A new centralized prevailing wage determination system took effect on January 1, 2010. Starting this year, all prevailing wage requests should be filed to the centralized federal office in Washington, DC. A new ETA Form 9141 was introduced for prevailing wage request filing. Before an online system is launched, all prevailing wage requests must be mailed to the centralized office. Meanwhile, a new 9089 form is expected to be in place sometime in the near future. With these new changes, especially the newly designed 20-page PERM 9089 application, a PERM petition requires much more expertise and knowledge than a standard labor certification.
- EB-3 PERM Application Has Significant Value
While the EB-2 PERM category (requires a minimum of a master’s or bachelor’s degree plus 5 years of experience) is desirable in regards to visa number availability, the EB-3 PERM category (requires a minimum of a bachelor’s degree or only two years of experience) should not be ruled out. In the real world, many employers are unwilling to offer an EB-2 PERM due to wage differences, human resources policy, or an alien’s qualifications. Because the EB-3 has extensive visa backlogging, many alien workers believe it is not even worth submitting an application. Unfortunately, backlogging overshadows the procedural and substantive benefits associated with an approved EB-3 PERM. An EB-3 PERM is substantial for two reasons. First, if an EB-3 PERM is approved, and a subsequent EB-3 I-140 is approved, an alien beneficiary will retain the priority date established by the EB-3 PERM for any future EB-1, EB-2, or EB-3 cases. For example, we worked with a mainland Chinese national who filed an EB-3 labor certification back in January 2005; the alien’s labor certificate as well as EB-3 I-140 was approved. The alien then returned to China to work until 2008. At which time, he received a new job offer from a U.S. employer. The new U.S. employer filed another EB-2 PERM and received approval in May 2009. Because this alien worker was able to carry over his priority date from January 2005, he was able to concurrently file an EB-2 I-140 and I-485 after PERM approval, and received his green card within 5 months.
Second, those who wish to apply for an H-1B extension beyond the 6-year limitation may also find the PERM process beneficial. If one has received EB-3 I-140 approval but has not yet received a visa number, he/she may indefinitely extend the H-1B beyond 6 years until a visa number becomes available. Alternatively, an independent law offers H-1B extension beyond 6 years if a PERM (either EB-3 or EB-2) has been filed 365 days prior to the 6 year anniversary so long as green card processing has not concluded.
Conclusion
With the recovery of the economy, PERM labor certification is a very viable path for a green card. Employers are well situated to test the local job market as advertisements for PERM may also satisfy recruitment as well. Moreover, in situations where an employer can only file an EB-3 for an alien, the alien should take advantage of the priority date and H-1B extension associated with EB-3 by pursuing an EB-3 PERM case. Finally, with the legal and procedural complications of the PERM system, one should always consult and work with an experienced immigration lawyer.
*Past record of approval does not guarantee future outcome. Each case is unique and has its particular factual pattern, and they may impact the results of a case.
**Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has 10 years of experience in employment/business immigration and international law. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at jzhou@hooyou.com . Ms. Kimberly Ninh contributed to this article.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fourteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
Zhang & Associates, PC.
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(01/08/2010)
