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.


The author is a 26 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof.

This article © 2005 Alan Lee, Esq.

 

Copyright © 2003-2012 Alan Lee, Esq.
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