PERM Implications : One-Year Incremental Extensions on H1Bs
Posted Jan 14, 2005
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At The Law Office of Sheela Murthy, P.C. we are spending countless hours analyzing PERM. We are looking into how PERM may operate and its implications for our clients, for MurthyDotCom readers, and MurthyBulletin subscribers. For ease of reading, we will be addressing issues under PERM through a series of articles on various topics.
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Annual H1B Extensions under Pre-PERM
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PERM will not only affect the green card process itself, but will also change how those seeking one-year incremental extensions of H1Bs beyond the normal six-year limit should plan for filing the labor certification. Eligibility for these extensions requires the filing of an employment-based green card case at least 365 days prior to the H1B extension request to take advantage of the annual incremental extensions beyond the six years. Therefore, advance planning is needed.
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At present, if a position is considered to be in a shortage occupation, a company may choose to file a labor certification through regular processing or through a reduction in recruitment. Reduction-in-recruitment (RIR) cases generally take longer to file because recruitment (advertising) results must be obtained prior to filing. Therefore, in order to complete the required advertising before filing, work on a reduction-in-recruitment case must start three to six months prior to the desired filing date. If a case needs to be filed in time for the beneficiary to qualify for an H1B extension beyond the six-year limit, an employer needs to take action three to six months before the beginning of the employee's sixth year of H1B status. If the employer chooses to file under the regular labor certification process, however, the regular labor certification could, in most cases, be started very shortly before the beginning of the sixth year of H1B status. Although it is preferable not to rush to prepare any case, such cases could be prepared in a matter of days and certainly in a few weeks, if needed. The reason for this ability to quickly file such cases is that recruitment does not take place in regular labor certification cases until after the labor certification is filed and the State Workforce Agency (SWA) or Backlog Elimination Center (BEC) initiates the recruitment.
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The priority date is also currently established on the date that the labor certification is filed with the SWA. The final prevailing wage determination that is made by the SWA is done after the priority date has already been established, and there is no required prevailing wage determination by the SWA prior to receiving the priority date for most labor applications. Therefore, an SWA prevailing wage determination has not usually delayed a labor certification filing. All of these factors allowing for a fast filing are eliminated under PERM. Thus, more advance planning is required, particularly for persons approaching the five-year point in their H1B stays.
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Annual H1B Extensions under PERM
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PERM does not provide the opportunity to file a case before recruitment is complete. This means that the employer will need to initiate and complete its recruitment in advance, in order to be able to file the PERM case before the start of the employee's sixth year on H1B status. Further, the employer must obtain a prevailing wage determination from the SWA before the case is filed. This can delay the PERM filing, depending upon how long it takes for the SWA to provide the prevailing wage determination. For these reasons, an employer planning to start a PERM case for an H1B employee should try to do so as early in the employee's fourth year of H1B status as possible, if not earlier. Adequate time must exist for obtaining a prevailing wage determination and completing recruitment efforts well before the start of the H1B sixth year to take advantage of annual H1B incremental extensions beyond the sixth year.
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Will PERM Eliminate the Need for H1B Extensions?
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PERM is expected to be much faster than the current labor certification system. There is, however, no guaranteed processing time. Moreover, any new system is subject to technical problems and glitches. In addition, as regular MurthyDotCom and MurthyBulletin readers know, the EB3 priority dates have retrogressed. This means that persons from India, mainland China, and the Philippines will likely be unable to immediately file their I-485s even if their labor certifications are approved. These people will need to extend their H1Bs until they can file their I-485s or complete consular processing cases for immigrant visas. If an employee chooses consular processing instead of the I-485, but intends to stay in the U.S. until called for the consular processing interview abroad, s/he will then need to maintain H1B status. Further, if PERM processing and USCIS processing are much faster, the demand for immigrant visa numbers for employment-based cases will increase. This can cause the EB3 numbers to retrogress even further and potentially could cause a retrogression for EB2s. Therefore, it is necessary to plan for H1B extensions beyond the six years in order to maintain H1B status in light of retrogression issues. One-year incremental H1B extensions most likely will continue to be a valuable commodity for employers and their H1B employees.
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To summarize, it is likely PERM will not impact the need for H1B extensions, especially if the priority dates have retrogressed. On the other hand, if the priority dates are current, the advantage of being able to concurrently file the I-140 and the I-485 with the EAD and AP will prove useful with PERM for certain employment-based applicants.