Concurrent Processing of I-140 and I-485 Adjustment to Permanent Residence

The INS announced yesterday that effective immediately they will authorize a new and improved procedure for filing for permanent residence. 

Prior to yesterday persons seeking permanent residence based on an employment-based petition had to have the Form I-140 stage of the process completed before they could file the I-485 application to adjust their status to that of permanent residents.  Processing the I-140 - whether based on a labor certification, multinational manager, extraordinary ability, outstanding research or teaching, or a national interest waiver - takes months.  This would often delay the time when an individual could file the I-485 application.  Now the INS Service Centers will accept the I-485 application either:

·         Concurrently with an I-140, or

·         On the basis of an I-140 filed before the I-485

This is important because once the I-485 is filed the applicant and dependents filing may:

·         Obtain employment authorization. This relieves the need in many cases to extend H-1B or L-1 status for the applicant and opens doors for dependents to obtain employment, Social Security Numbers, and a driver’s licenses.

·         Remain lawfully in the US pending a final decision on the I-485

·         Apply for advance parole authorizing travel abroad without the need for a visa

·         Mobility in employment.  Once the I-485 is filed and 180 days have passed, current law allows the applicant to change jobs so long as the position is within the same or similar occupation.

Although the approval of permanent residence will not come any sooner, this is very important because this change eliminates the delay to get an I-140 approved, which pushes the above relief forward many months.  This can mean the difference between remaining in the US and having to go home. I am delighted that the INS has finally done this - it is a step that I advocated as President of the American Immigration Lawyer's Association three years ago.

We have already begun to review cases pending in our office that may be affected by this important change and will contact all employers and applicants to discuss the best way to proceed in each case. 

Please bear in mind that if the labor certification is not yet approved we will have to wait to take advantage of this new procedure.  I have been designated by the DOL to request an expedited decision if the following criteria apply:

·         The labor certification was filed in any New England State over a year ago, and

·         It is currently at the Boston Regional Office of the Department of Labor (DOL), and

·         The applicant will reach the end of the 6-year period in H-1B status.

DOL Proposes PERM Rules: Employers Rush to File Before Implementation

The DOL has proposed an overhaul of the labor certification program that requires employers hiring permanent immigrant workers to undergo test recruitment to show that a US worker is not available.  DOL would replace the existing RIR program with the substantially more restrictive “PERM” program, possibly effective as early as February 2003.  While I have worked with the American Immigration Lawyers Association and American Council on International Personnel to submit comments, we are not optimistic about the outcome.  Employers are advised to file labor certification for existing employees now rather than later.  In the past there was an advantage in waiting because the employee would acquire skills and experience, which could then be required in the test recruitment involved.  But under PERM it would be impossible to use experience gained on the job in every circumstance even where the position petitioned for is clearly a substantial promotion.  PERM would require 2 Sunday newspaper advertisements, or one Sunday paper ad and one in a professional journal when the position offered requires an advanced degree.  Ads would have to include the employer's name, wage offered, and a detailed description of duties.  Three additional forms of recruitment would be required for professional jobs.  The job requirements cannot be tailored to the employer's needs as they are in the existing program.  Resumes of US applicants would have to be submitted in the event of an audit.  Failure to provide all documentation within 30 days of an audit notice would result in a finding of fraud.  In light of these drastic changes, employers are advised to file cases in the following situations before the PERM program goes into effect next year.

1.       Any position where applicants with experience in the field may possibly be available.  Under PERM the employer will not be able to reject US workers who lack a specific requirement for the position if the DOL feels that they may qualify through a combination of other education, training or experience they possess. 

2.       Any position which does not clearly meet the DOL's inflated wage guidelines.  Currently there is a 5% leeway allowing payment of 95% of the prevailing wage.  This leeway would be eliminated and would effectively raise wages 5% in most cases.

3.       Lower level and entry level positions may be more difficult to petition for under PERM because most of the employees in these positions will have gained their experience with the petitioning company, and it will not be possible to specify that experience as a requirement under PERM.  It will not help to wait to file when the individual has more experience if on-the-job experience is excluded.

4.       Professional positions which can be performed without a degree such as graphic artist or web developer.  DOL does not recognize these as professional positions and might well preclude requiring a bachelor's degree because they are not on the list of professions. 

5.       Any position where advertising costs are an issue.  PERM ads will have to be more detailed than under the present RIR (Reduction In Recruitment) program and require more ads than under the present traditional labor certification program. Under current RIR guidelines an employer seeking to fill vacancies can use their “real world” ads.  Under PERM they would have to run a separate ad for the DOL including the wage because normally no one includes the wage in a “real world” ad.

6.       Any position for a person who gained their qualifying experience in a different or related occupation.  Under PERM it will not be possible to require alternate experience.  For example, a software engineer would not be able to qualify for a position using her experience as a programmer.  Unfortunately, in the real world not everyone has direct experience leading to his or her chosen career.

7.       Any job requiring more than the DOL's SVP guidelines in terms of experience.  (SVP sets forth what level of education and experience the DOL believes certain positions should require.)  For instance, ads for systems analysts would only be able to specify a bachelor's degree and 2 years experience or a Master's and no experience. Exceptions could not be made because of the employer's needs absent a history of hiring a US worker with those requirements within two years prior to filing.

8.       Any position where critical qualifying experience was gained working for the employer, a related company anywhere in the world, for a contractor of the company, or a predecessor in interest.  While that experience can be used to qualify the foreign national under current law, if it was in a distinct position, it cannot be used at all under PERM.

9.       Any position where the employer does not want to put the company name in the ad.  Currently if you are filing for a top official of the company you may be able to waive the normal requirement that the name of the company appear in RIR ads.  That would be barred under PERM, even for a CEO of a publicly traded firm.

10.   Nurses with temporary licenses.  PERM will only allow Schedule A processing (which waives the advertising requirements) to be used for nurses with full state licenses or CGFNS certification.

11.   Nurses and physical therapists that do not meet the DOL's inflated prevailing wage guidelines. Currently these Schedule A occupations have no wage requirement.

Visa Delays

Security clearance procedures installed after 9-11 are causing extensive backlogs in visa issuance, particularly for natives of 34 countries deemed to have terrorist activity (see partial list of countries attached).  When first announced several months ago the clearance process was 20 business days.  But consuls have recently announced that there is no longer an upper limit and they are experiencing delays of several months in many cases.  Clearance procedures are shorter for persons from other countries, but delays are still being encountered and most posts are no longer able to issue visas the day of application.  Persons with an H, E, L, O or P visa may extend an existing visa in the same category without departing the US at the Visa Office in Washington, but if security clearances are required they will not issue the visa.  These delays are causing problems for business travelers who cannot remain in the country long enough for the security clearance to take place.  In some cases, where one needs to apply for the visa abroad, some consular posts will allow the application be sent by mail.  However, more than ever, it is vital that foreign nationals plan travel well in advance if they do not have a valid visa for the category they are currently in.  (A change of status by the INS will not be sufficient to allow you back into the country.  The visa stamp must also be placed in the passport and this can only be done by a consular officer abroad, or in some cases by the Visa Office.)

Layoffs and Labor Certification

In response to rising unemployment the Department of Labor (DOL) is requiring employers with layoffs to document efforts to find alternate jobs for US workers laid off and to document why laid off workers are not qualified to do the job for which labor certification is sought.  Because the request to furnish documentation may arise long after the layoff, employers should be sure to obtain documentation at the time of the layoff and not wait until memories are dim and sources of information have dried up.  We recommend the following information be obtained at the time of a layoff:  resumes of workers laid off, reasons the specific individual was selected for layoff, their skill sets, efforts to find alternate employment, and reasons why the individuals are not qualified for the labor certification position.

Where the labor market has deteriorated since the application was filed and there are layoffs in the occupation at other employers, the employer seeking certification may be required to conduct supplementary recruitment as well.