LEGAL AND ILLEGAL ALIENS - PERM, RIR, TRADITIONAL OR NO LABOR
CERTIFICATION PROCESSING? (Part II) *
By Alan Lee, Esq.†‡
(Part II)
The first part of the article discussed the differences between
the proposed and final rules of the Department of Labor affecting
the new Program Electronic Review Management (PERM) program which
will come into effect on March 28, 2005. We partly answered the
question of whether to wait and file under the PERM program or to
file under the present traditional or reduction in recruitment (RIR)
labor certification procedures. This portion will explore the interplay
of labor certification applications with immigrant visa quotas and
point out why even illegal aliens who cannot possibly immigrate
under present immigration laws may wish to consider filing for labor
certifications anyway.
One would suppose that a PERM application is always the answer
if the prime concern of the organization and alien is speed. However,
it must be remembered that the labor certification is only part
of an immigration case. In order to be approved for immigration,
the priority date (date of filing with the SWA or Department of
Labor (PERM cases)) must be current under the Department of State's
visa bulletin. Currently there are backlogs with individuals applying
under the employment third category (EB-3) for China, India and
Philippines born. (The EB-3 category is available for positions
requiring either 2 years of working experience or a bachelor's degree).
From speaking with the Department of State (DOS), the quota situation
for EB cases will improve as this fiscal year goes on, but will
most likely worsen afterwards.
CHINA:
The DOS does not expect that EB-3 priority dates will become current
for China or India born at any time soon. This appears to leave
the probability that many individuals from these two countries with
approved PERM certifications will not be able to immediately file
concurrent applications for I-140/I-485 benefits in the EB-3 category.
(An I-140 Immigration Petition for Alien Worker and I-485 Application
to Register Permanent Residence or to Adjust Status, the next 2
steps in the process for individuals seeking to obtain permanent
residence without leaving the country, can usually be filed together
at the Regional Service Center Office of USCIS to expedite processing).
We can also envision an increasing spike of cases beginning in May
as more knowledge is accumulated about the PERM program, recruitment
is done, and applications submitted to the Department of Labor.
In this situation, individuals who have priority dates by May 2005
may ultimately benefit much more than persons filing afterwards.
Given those parameters, workers from those 2 countries in the EB-3
category should strongly consider filing RIR labor certification
applications at this time.
OTHER COUNTRIES:
For countries not already backlogged, our guess is that there will
be sufficient numbers to keep the EB category current in the near
future, or if not, that the available pool numbers at the end of
this fiscal year will bring worldwide EB preferences back to current
in the first part of fiscal year 2006 (beginning October 2005).
(Our reason for optimism in FY2005 and the beginning of FY2006 is
that we do not believe that the U.S.C.I.S. will reach its stated
goals and send as many EB adjustment of status cases to the DOS
as it has projected). However, the projections for the rest of fiscal
year 2006 are not good according to the State Department. In looking
at the numbers provided by DOS (as per our conversation with DOS
on 12/29/04), we envision that, given the worst figures by DOS as
to the number of EB cases being held in the U.S.C.I.S. service centers,
there will be need for at least 200,000 EB numbers for FY-2006.
Given that the annual quota is only 140,000 + unused family based
numbers, the worldwide date will also backlog. The only reason why
it would not would be the USCIS service centers shifting their direction
away from backlog reduction for adjustment of status cases, and
stop their sending of excessive EB demand to the Department of State.
Under the above scenario, persons from other countries may consider
a quick filing of PERM applications so that concurrent filings of
I-140/I-485 may be done by the end of this fiscal year, but they
should be prepared to accept the fact that they may have to wait
a period of time for their final adjudications if the quota backlogs
after their I-485 applications have been submitted.
Employers and aliens should of course consider other aspects such
as the additional burden of recruitment under the PERM program,
especially with regard to professional cases; whether there will
be much U.S. worker availability in the specific occupation; the
employee's specific immigration status at this time (is he/she running
out of H-1B time?); and the additional expenses and responses from
U.S. workers associated with a PERM recruitment effort. Of course,
costs are mitigated if the organization has an ongoing program of
recruitment.
Should individuals who are illegal in the United States do anything
at this time? Or should they wait until the Bush proposal for a
guest worker program, or one of the bills to legalize their status
in the last Congress be re-introduced and come to fruition, or Congress
passes another extension of section 245(i). (Section 245(i) allows
most individuals to interview in the United States for permanent
residence upon payment of a fine amount, currently $1,000. In its
last extension, persons were eligible who applied for labor certification
or immigrant visa petition by April 30, 2001, and were physically
present in the U.S. on December 21, 2000. The section is important
to most illegals as the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 imposed 3 or 10 year bars upon return
for most individuals who stayed in the country illegally for 180
days or one year respectively after April 1, 1997). Surprisingly
illegal aliens might consider the possibility of applying for labor
certification at this time to ward off the possibility that they
will have to wait a very lengthy period of time to obtain their
permanent residence if any of the above programs are passed. As
we saw in the last extension of section 245(i), a massive number
of persons applied for labor certification processing and a glut
of cases backed up the Department of Labor for years. There is the
possibility of this same scenario repeating itself with manpower
shortages again at the Department of Labor and/or the immigrant
visa categories becoming seriously backlogged for years. As seen
above, the employment based categories are projected to have backlogs
in the future even without considering the possible effects of a
massive wave of applications if a new law passes. In that case,
those persons who put in their cases first will be benefited, and
those who wait will be waiting a long time. Readers should note
that the Bush proposal does not allow a conversion to permanent
residence and the bills in the last Congress that did provide for
such would operate on a slow track. For illegal aliens who decide
to apply for labor certification at this time, they can consider
applications under RIR or traditional labor certification processing
prior to March 28, 2005. At that time, if they still wish to consider
labor certification processing, their employers will have to go
through the additional recruitment steps of the PERM program.
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