12 December 2014

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.

Copyright 2018. All rights reserved.

Posted December 12, 2014 by KrystalAlanis in category "Green Card", "I-140", "I-485", "Labor Certification


  1. By Kumar on

    I have my I140 approved from my previous employer (priority date May 2012). I joined a new company last year (Oct 2015) and my current employer has initiated the Green Card process. As per my attorney prevailing wage determination was submitted on 6/8/15. Also, on regular intervals, I’m checking with my previous employer to make sure my I140 is not revoked. I’m trying my best to expedite the process.

    If my previous employer doesn’t revoke my approved I140, will I be eligible for executive actions? Could you please share if you have any suggestions to speed up my Green Card process?


    1. By Krystal Alanis on

      Hi Kumar! The only way you will be able to take advantage of an implemented rule that allows those with an approved I-140 Petition to file the I-485 even if the priority date is not current, is if the I-140 is not withdrawn. But, even if not withdrawn, there still needs to be a bonafide job offer available from your previous employer and you still intend to work for that employer (meaning that your employer still has the position open, still intends to hire you in the sponsored position and you still intend to work for that company at the time the green card is received).

      There may be a change of plans to this proposal though. It looks possible that instead of allowing someone with an approved I-140 to file the I-485 when the priority date is not current, the individual will only be allowed to file for an EAD (although we can’t be sure of this right now). If this was to be implemented, it would be more than likely that you would not be able to obtain an EAD with a withdrawn I-140.

      The good news is, if your previous employer withdraws your I-140, you will still be able to retain that priority date once your current company obtains an approved I-140 (through porting of the old priority date).

      As for expediting the current case, please see my previous blog post: https://theimmigrationfiles.com/2015/02/06/perm-filing-from-start-to-finish-file-in-under-70-or-130-days/

      I hope this helps! If you have any other questions, please let me know!

  2. By Marie on

    I went over this internet siе and I think you have a lot off good info, bookmarked (:.

  3. By Andy on


    May i know how long it takes for an employer to file the perm/labour for GC, which includes all the steps like posting Advertisment and all?

    1. By Krystal Alanis on

      Hi Andy!

      Depending on the situation, it can take a minimum of 3.5 to 4 months to file the actual perm application from the time the advertising process begins. There are certain ways in which we can reduce the amount of time it takes to file a case, but there are government regulations that will not allow us to file a case any less than 2 months from the day your employer begins the advertising process.

      I hope this helps!

      1. By Andy on

        Thanks for your response..so to understand the steps for applyng perm:

        One step is to posting advertisment and wait for 3-4 months….are there any other steps ahead of it? And the time frame for those steps.

        1. By Krystal Alanis on

          Hi Andy!

          Yes, there are multiple steps to the PERM process that precede the advertising process. Many of these steps involve communicating with the employer to figure out the minimum requirements for the position and submitting what is called a prevailing wage application. There are also multiple advertising mediums where the job must be placed (not just one). The PERM process is very complicated, which is why it is important to consult an attorney on these issues.
          You can dial into our free daily conference call for your general immigration questions (see below) or if you have specific questions you can call 713-457-5703 for a discounted consultation. Thank you!

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  4. By Krystal Alanis on

    HI Satish,

    Yes we are hoping for the same. Some of these changes should be happening within the next few months as the relevant government agencies have been directed to implement regulatory and policy changes that are in line with the President’s goals. I will provide updates as they come in. Thanks!

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