Many aliens are confused over the new “Program Electronic Review Management” system (PERM), thinking that there was a critical deadline of March 28, 2005, which must have been met, or they cannot get a green card through an employer. Others think they might be able to get a green card in only a matter of a few months with PERM.  Here are some of the frequently asked questions addressing some of the misunderstandings and confusion surrounding PERM:

1. Question:

I heard that there is a deadline of March 28, 2005 for PERM.  Does that mean that if I didn’t file anything by that date, I can never obtain a green card through an employer?

Answer:

There really is no “critical” filing deadline of March 28, 2005.  All that date means is that starting March 28, 2005, all new employer-sponsored green cards must be processed only through PERM, and not the existing labor certification system.  It does not mean it is the “end” of labor certification and/or employment-based cases.  If you file a labor certification application before March 28, 2005, you process your case under the existing labor certification system. After March 28, 2005, you would use only PERM.

Some of the changes brought about by PERM include:

- A new form (ETA 9089) replaces the old ETA 750 A and B.

- Recruitment of US workers prior to filing, versus the current system, where recruitment may occur after the labor certification application is filed.

- The State Workforce Agencies (SWA), such as EDD, will no longer be involved in the processing of the cases, except for providing the “prevailing wage”.  Instead, the Department of Labor will handle virtually all of the PERM review and processing.

- The PERM application can be filled out, and submitted online, without including the supporting or backup documentation (such as diplomas, documentation of recruitment, etc.)  However, the employer must keep such documentation and supply it to DOL if and when requested.

2. Question:

I heard that the Department of Labor (DOL) is saying that it can process the PERM application within about 60 days.  Does that mean that I could already file for a green card or work authorization after 60 days?

Answer:

While the DOL advises that it anticipates being able to process the new PERM application within about 60 days, there are many more steps and time limits involved than just 60 days. The 60 days is only the DOL’s portion of the process and does not include the processing time of USCIS for the petition or adjustment of status, or waiting for the “priority date” to be “current”.

First, before a PERM application is even filed, the employer must conduct pre-filing recruitment, such as two ads in the Sunday newspaper, job posting at the jobsite and the Internet, and the like.  The pre-filing recruitment would still take a few months in order to complete.  Only once it is completed can the PERM application be submitted to DOL.

Second, once DOL “approves” or “certifies” the application, the next step would be filing a petition with the USCIS.  Right now, USCIS indicates that processing times for an I-140  (employment) petition could be about seven or more months from the time it is filed.

Third, once the I-140 petition is approved, you cannot get your work authorization or green card immediately because, unfortunately, in January 2005, the priority dates for workers “retrogressed” or went backwards to 2002 (for college graduates and skilled workers), and 2001 (for unskilled workers).  Before January 2005, the priority date for such workers was “current”, meaning that as soon as the Department of Labor “certified” the job, the alien could file the petition, application for work authorization, and adjustment of status, all at the same time.  With the retrogression of the priority date, only those aliens whose cases were filed before the 2002  (or 2001 for unskilled workers) priority date(s) would be eligible to file for adjustment of status and work authorization.  Until the priority date is current, the only thing that could be filed is the petition itself.  Therefore, even if DOL processes the labor certification application in only a few months, it will still be a few years before the person will actually have a green card.

3. Question: 

Should I convert my existing labor certification case to PERM?

Answer:  

Whether an alien should convert his or her existing labor certification to PERM is still an issue that is subject to debate.  According to DOL officials, in order for a person to “convert” an existing labor certification case, the new PERM case must be “identical” to the existing labor certification case in all respects.  If the employer even moves across the street, or any of the job duties are different, then the case may not be considered “identical” by the DOL.

The problem with whether or not the jobs are “identical” is that in order to request conversion, you must “withdraw” your existing labor certification case and submit the new PERM case.  If the DOL agrees that the job is identical, that is great, and you can retain your existing priority date. 

However, if for any reason, the DOL decides that the two jobs are not exactly identical, then you lose your old priority date, and your case is filed as a brand-new PERM case.  The problem is that with the retrogression of priority dates, you may want to hold on to your old priority date under your existing case, and not risk losing the priority date by trying to convert a “non-identical” case.

Therefore, before you decide to “convert” your existing case, I would suggest that you seek the advice of a reputable attorney, who can analyze your case and advise you appropriately.

As you can see, there are a lot of myths, confusion, and misunderstandings about PERM.  I hope that the foregoing provides some enlightenment to you. 

***

Michael  J. Gurfinkel has been an attorney for over 24 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.  He has always excelled in school:  Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. 

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