New Events in Labor Certification Processing
Finally! After more than two years the U.S. Department of Labor has issued its final rules regarding the alien labor certification process. The new regulations are effective as of March 28, 2005 and the only question with which you should be concerned is: Will it help me?
The answer is a solid . . . "maybe." The new system, known as PERM (Program Electronic Review Management) has one, and only one, advantage from where I sit: it should be faster. PERM will be an application that is filed electronically after a U.S. sponsoring employer completes a series of mandatory recruitment and advertising activities. The Department of Labor "anticipates" but does not guarantee a turn-around processing time of 45 to 60 days. If it is able to pull it off, it will be unprecedented. Currently, the processing time can be as little as 12 months in some states and as much as 3 years in others. So, 2 months is a promise that when dangled in front of our eyes leaves us giddy with delight.
However, don't laugh yourself silly yet. Remember that the filing of an alien labor certification application is only the first in a 3 step process and acts to give the intended alien beneficiary a place in the visa quota system, called a priority date. When that priority date reaches the front of the visa queue, the alien may make his final, personal application to claim the green card. Now, the U.S. Department of State is the federal agency that controls and monitors the progression of the visa queue. It predicts that the employment-based immigrant visa quota in the third preference category will become "oversubscribed" in the next number of months; China, India and the Philippines have already suffered this fate. The third preference category is the most commonly used since it encompasses professional and skilled workers.
What does this mean? It means that even if the Department of Labor can perform a miracle and actually adjudicate its alien labor certification applications within a few months, the alien applicants will need to wait until their number in the queue snakes towards the top. This will require those alien beneficiaries to still stay in legal status while in the U.S.- quite possibly for several years- because they can not make the final application for green cards even if they have an approved labor certification application.
When will this happen? It is difficult to determine- even the Department of State is unsure. But, as of the beginning of 2005 the Department of Labor is moving the 300,000 applications it has pending around the country to one of two processing centers with an intention to clean up its backlog of long-waiting cases. Many of these applications have been waiting since 2001 for adjudication. The Labor Department is committed to having all of these applications processed over the next 2 years. My best guess is that as these applications get approved and their intended beneficiaries make their final applications for green cards, the quota system will become oversubscribed. This means simply that there are more applicants than there are immigrant visas available and those in line will have to wait.
The PERM rules permit a pending application to be withdrawn and re-filed under the new regulations. If this is done within 210 days, the alien beneficiary may keep his or her original priority date or place in the visa quota queue. This will become essential should the numbers retrogress.
Whether this is a winning strategy for you should be discussed with your attorney. Our firm files an average of 250 applications for alien labor certification every year, so we have hundreds currently pending at the Department of Labor. We promise that each and every one of these will be analyzed to determine the best course of action to achieve your goal of permanent residence as soon as possible. The long-awaited PERM regulations may prove to be just what the doctor ordered for the over-burdened hospital but may or may not be the cure for the patient. We'll just have to wait some more to see.
