Articles Posted in Labor Certifications (PERM)

I’ve been fielding a lot of calls for PERM lately. I’m not sure if it’s related to the fact that indications for the private sector and employment numbers are on the rise or if it’s the beginning of a new year and everyone wants to start their permanent residency applications, or just what.

Either way, I wanted to summarize just what it takes to start and submit a successful PERM application. PERM, which is the formal name for the Department of Labor’s (DOL) foreign labor certification application, Form ETA 9089 – is a complicated process. Before an applicant even deals with the USCIS, an applicant’s employer must conduct a formal recruitment campaign, setting out advertisements for the employment opportunity and only after weeks of advertising plus a 30-day quiet period, can a PERM application be submitted. A useful overview of the entire process can be found at our website:
In the meanwhile, a lot of things must be achieved during this time: DOL’s independent verification of the company’s existence, a prevailing wage determination also by DOL, and of course, meticulous documentation of the advertisings and recruitment results. If all goes well, a PERM applicant may see their application lodged with the DOL some 2-4 months after starting the process. Current processing times once a labor certification has been submitted are surprisingly short right now. Our office recently received a labor certification approval within 2.5 weeks of submission. And while I can’t ensure that this trend continues, it is a welcome surprise. I will explain the second and third stages to a PERM application in the next blog, so please check back in a couple of days. —ecf

The US Department of Labor recently published a report on the Foreign Labor Certification program, commonly called “PERM.”

According to the report, PERM approvals and applications as a whole have been declining since 2007. In fiscal year 2008, there was a 42 percent decrease from fiscal year 2007 in cases certified. In fiscal year 2009, there were 29,502 cases certified representing a 40 percent decrease from the number of cases certified in 2008.

There are currently more than 104,000 cases pending with the US Dept. of Labor. More than 64,000 of those cases were made just last year, meaning that many of these newer cases are creating a new “backlog” of cases waiting to be adjudicated. The US Dept. of Labor also admitted that the “limited number of Federal staff available to make final adjudicatory decisions adversely impacted quarterly production the result of which was a growing “backlog” during FY 2009.”

Yet another update to the H-1B quota, also known as the Fiscal Year (FY) 2011 H-1B cap.

Approximately 34,900 cases have been receipted by USCIS for the regular Bachelor’s degree H-1B quota.

Approximately 13,000 cases have been receipted by USCIS for the advanced degree H-1B quota open to applicants who have earned Master’s or higher degrees from US colleges and universities.

Beginning January 4, 2010, applicants for visas or greencards will no longer be considered inadmissible for being HIV positive. Early last month, the Health and Human Services Department (HHS) removed HIV (human immunodeficiency virus) from the definition of a “communicable disease of public health significance.”

This marks a major success by immigration advocates like Fong & Aquino and HIV/AIDS health advocates. J Craig Fong was cited in a recent Los Angeles Times article as one of the few immigration attorneys in the nation who work with HIV positive immigrants and who has been extremely successful in HIV waiver applications with the USCIS to overcome this ban.

Fong & Aquino applauds the Centers for Disease Control, the HHS, and USCIS in recognizing that the ban against nonimmigrant visa and permanent residency applications by HIV positive individuals was wrong. –ecf

PERM cases are backlogged now to December 2008. So if you have a PERM case pending that was submitted more than a year ago, DOL may entertain an email inquiry from you. But if your case was submitted in October 2008 or after, you still have a long wait ahead of you and yes, DOL does not want to hear from you at all…

USDOL reports that they have approximately 65,800 cases in the processing queue for PERM. This number also includes cases that are on appeal. Of these cases, approximately 24,600 or about 37% of the cases were issued audits.

For people waiting for final adjudication after submitting an audit response, DOL informs us that they are still working on audited cases from October 2007!

Microphone.jpgFong & Aquino in Los Angeles has received several calls about artists who have been involved in the preparations for the series of Michael Jackson concerts which were scheduled to take place in London beginning this summer. The performer’s recent death has thrown arrangements for those concerts into chaos.

Although the Jackson concerts were to take place in the United Kingdom, extensive preparations were taking place both in the UK and in the United States. In preparation for any big rehearsal, event, performance, or concert, teams of make-up artists, costume designers, hair stylists, choreographers, dancers, back-up vocalists, special effects personnel, music arrangers, musicians, lighting engineers, etc. etc. come together to create the shows that so many enjoy. The number of people involved with a complex series of high-tech, music and dance spectaculars can be upwards of 50 -100 people, not all of them American.

Renowned performers and artists can qualify for the O-1 visa (“extraordinary ability in the sciences, arts, education, business, or athletics) to enter the USA. However, when something catastrophic happens — like the death of a performer — the performance or concert on which the O-1 visa is based is cancelled, the performer or artist risks falling out of legal immigration status.

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State’s website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your “greencard.” Some of you are facing situations where your children face “age out” issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting…

The July 2009 visa bulletin released by the US Department of State confirms what we already know – that waiting times are painfully long and slow. But an announcement by the US Department of State’s Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is “dire” and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I’m not counting on it.

Fong & Chun has been informed that the US Consulate-General at Ciudad Juárez is modifying the way it processes waivers. Immigrant visa applicants who seek a waiver of a ground of inadmissibility at Ciudad Juárez, México should expect to wait at least two months for the waiver interview.   Our Los Angeles clientele includes many Méxican nationals, and those who to Mexico.jpgare applying for waivers will experience this delay and should plan accordingly.

Because applicants have flooded the Consulate with requests for waivers, and because many of those applicants do not even qualify for the waiver in the first place, the immigrant visa unit at the Consulate has been inundated.  The result has been (a) the imposition of a 48-hour waiting period before an applicant can even telephone to make a waiver interview appointment, and (b) a wait of at least two months for the appointment.
Applicants should make plans in advance, because unless an applicant has a valid visa, it is unlikely that an applicant can return to the USA prior to the waiver interview.  That means that applicants will need to anticipate an extended stay in México, until the waiver is granted.  Further, because of safety considerations, applicants may wish to pass that waiting time in a city other than Juárez.  If you have questions about how waivers work and whether you qualify, please feel free to contact us.  –jcf

Everyone has noticed how painfully slow labor certification (PERM) cases have become.  What was normally about a 45- 60 day adjudication period has now stretched out to 7- 9 months, on average.  Last week, the Dept. of Labor (DOL) announced that as of mid-March, they were working on cases that were originally filed in July 2008, and these are cases that were not selected for an audit.

A grim confirmation for cases that in the audit queue:  DOL confirmed they are now working on initial filing dates from September  2007.  Finally, for cases awaiting a response on appeal:  the DOL is working on cases with a priority date of June 2007.    
Gone are the days of re-filing PERM cases within a few months in case of a denial.  If it is taking 9 months for an initial adjudication and another 12 months for DOL’s response to an audit response, applicants and employers will end up waiting over 18 months to find out if their PERM case is successful or not.  If your PERM case is denied, you will not know until 18 months after your initial filing!  Employers will have to conduct new advertisng and recruitment which means yes, starting from scratch.

The May Visa Bulletin shows that all employment-based third preference (EB-3) category visas are listed as “U,” or “unavailable.”  This means that the USCIS cannot issue any immigrant visas (greencards) to people who are being sponsored under the EB-3 category until next October, when the new fiscal year begins and when immigrant visa numbers are replenished.  This will affect hundreds of thousands of applicants who have been waiting for their greencard cases to become “current” for several years.  Some applicants have been waiting since 2001 and even longer!  What many applicants do not realize is that they could be eligible for an EB-2 or “second preference” category greencard if they meet certain requirements.  Most people who are eligible for the EB-2 category are people who hold a master’s degree but some applicants who have more than 5 years of experience in their field may also qualify.

You should contact an immigration visa attorney if you believe you are eligible for an EB-2 category greencard application.  Experienced immigration attorneys who regularly represent employers in the labor certification process (PERM) can identify strong second preference greencard cases.  Although this is considered a more difficult case to present to the Department of Labor and to the USCIS, the benefits are immense.  Instead of waiting 7 or more years for a greencard through the EB-3 category, waiting times under the EB-2 category can be reduced to 2-3 years, possibly less if you use a competent immigration attorney.

I am most proud of a case involving a professional worker who had many years of experience in her field of work.  Even though she did not have a Master’s degree, we decided to pursue a more difficult EB-2 PERM case because one of her children was turning 21 years old within the year.  If we chose the EB-3 route, this child would be considered “aged-out” upon her 21st birthday and that child would never derive a greencard from her mother’s petition.  We decided to take a chance on the more difficult PERM case and earlier this year, the entire family (eldest child included) received their greencards thanks to our decision to file the EB-2 case and also because we benefitted from the Child Status Protection Act (CSPA) which can “freeze” a child’s age for immigration purposes.

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