Say YES to PERM, Part Deux!
As you all may remember, my very first blog post included an explanation of the benefits of getting the PERM labor certification process started (kick-off to the employment-based green card process) once your employer offers a permanent position to you. Some of the benefits I mentioned are:
- Securing your place in line as early as possible (the backlog for countries like India and China are already years long, so why put yourself even further back?).
- If a perm Labor Certification is filed at least 365 days prior to the day you reach your 6th year limit on H-1B, you can receive a 1-year extension on the H-1B.
- If you have an approved I-140 Petition you can receive 3 year extensions on your H-1B until your priority date becomes current.
- Once your priority date is current and you file the I-485, you can also file the EAD and Advance Parole application. Even if your I-485 isn’t adjudicated before priority dates retrogress, you can still obtain the EAD and Advance Parole and change jobs under AC-21 (For AC-21 to apply, the I-485 must be pending for 180 days or more and the new job must be in the same or similar occupation for which the certification was initially made).
We are now anticipating even more benefits with the President’s executive action. Although the President’s current directives in the employment-based immigration area have been vague, the suggestions are a look into some exciting changes to be made in the coming year.
In light of the President’s directive, DHS Secretary Jeh Johnson issued a memorandum to USCIS directing the agency to take steps to modernize and improve the immigrant process. It is clear in this memo that USCIS is expected to set forth policy changes to provide more stability to those beneficiaries of an approved employment-based immigrant petition (I-140). As it stands, a beneficiary with an approved I-140 cannot file an adjustment of status application until his or her priority date is current. Naturally, this means that the individual cannot obtain the benefits of a pending adjustment application. With the current directive, it is expected that those beneficiaries of an approved I-140 Petition will be able to file an adjustment of status application even if their priority date isn’t current. Although the adjustment of status application cannot be approved until your priority date is current, you can obtain the benefits of a pending application. This will give beneficiaries of approved long-standing visa petitions more leeway when it comes to other employment opportunities.
USCIS has also been instructed to ensure that all immigrant visas authorized by Congress are issued to eligible individuals. This opens up the possibility that dependents of green card applicants will no longer be counted toward the visa cap and that unused visas may be recaptured. If both actions occur, the EB2 and EB3 categories will be clear of the backlog, making priority dates current for all (for many years to come). If this was to be implemented, for instance, a beneficiary from India who has a PERM Labor Certification filed today on their behalf could receive the green card in 1.5 to 2 years.
Remember, for any of these coming benefits to apply to you, the employment-based green card process must be started; most often the first step of the green card process is filing the PERM Labor Certification. So even if my originally posted benefits aren’t enough to accept that permanent job offer from your employer and begin the green card process now, consider these new benefits as motivating factors.