February 24, 2005

PERM “Conversion”

With the new PERM labor certification regulations’ promise of shortening the labor certification process from several years to several months, many employees and their employers have asked if a previously filed traditional or reduction-in-recruitment (“RIR”) labor certification case can be “converted” to a PERM labor certification. In many cases, the answer is yes; however, there are numerous considerations to take into account before making a decision to “convert” a case to PERM.

Before discussing those considerations, it should first be noted that the term "convert" is a misnomer. To “convert” a labor certification to PERM, the previously filed traditional or RIR labor certification must be withdrawn then refiled under PERM. The refiling of the new PERM application must occur within 210 days of the request for withdrawal. In addition, the labor certification refiled under PERM must be identical to the labor certification as previously filed and must meet the requirements of the new PERM regulations, most notably those relating to recruitment, prevailing wage and minimum requirements. For a PERM application to be considered identical to a previously filed traditional or RIR labor certification, it must have the identical job opportunity, that is the same employer and alien, job title, job location, job description and minimum requirements.

If a previously filed traditional or RIR labor certification is successfully withdrawn and refiled under PERM and found to be identical, the labor certification will be allowed to retain its original filing date, also known as the “priority date” that is now impacting when certain foreign nationals may complete their permanent residence process based on the retrogression of priority dates for employment base visas (for more information on this please see our recent article in the December Newsletter). Traditional or RIR labor certifications that are withdrawn, refiled and not found to be identical to the original filing will be treated as new applications and assigned a new priority date. The old priority date will be lost. As discussed below, this may present a problem for some foreign nationals.

The following are only some of the issues that should be considered when deciding whether to refile an application under PERM:

1. Is the foreign national's pending traditional or RIR labor certification the basis for extending lawful nonimmigrant H-1B status beyond the standard six year limit? If a pending labor certification is withdrawn and refiled under PERM, and the Department of Labor determines that the job opportunities are not identical, the PERM labor certification would be treated as a new case, not a converted case, and assigned a new filing date. The loss of the original filing date could mean the loss of eligibility for the filing of H-1B extensions beyond the six year limit.
2. What will be the additional cost of recruitment? For some employers, the cost, time and effort involved in performing new recruitment may be prohibitive and work against converting an already pending application. Recruitment for the offered position must be performed within six months of filing a PERM application. Therefore, for labor certifications that have been pending for even just a couple of months, the employer may be unable to use some or all of the recruitment performed for the offered position. In addition, any advertisement that does not comply with the PERM regulations cannot be used. The additional cost, time and effort aside, anytime new recruitment is performed, the employer also runs the risk of not being able to disqualify a U.S. Citizen or legal permanent resident who applies for the position since some of the requirements under PERM will make disqualification more difficult in some situations.
3. What are the risks to the priority date and impact of visa retrogression? For foreign nationals of certain countries, withdrawing a previously filed traditional or RIR labor certification and refiling it under PERM may affect the time they must wait to apply for permanent residency. Foreign nationals impacted by visa retrogression may not wish to withdraw their pending labor certification and risk losing their priority date. In addition, PERM’s faster processing time may be of little benefit to these individuals as they may still be required to wait several years for their visa category to become “current” so they can finalize the process by applying for adjustment of status in the U.S. or an immigrant visa abroad. (For more information on visa retrogression, please see our recent article in the December Newsletter.)
4. How will recent lay-offs impact the application? In general, under PERM, if a company has experienced lay-offs in the six months preceding the filing of a labor certification, it must notify any employees laid off in the occupation being offered or in a closely related occupation of the labor certification job opportunity and record the results of such notification. This may make some employers uncomfortable and, depending on the scale of the layoff, may simply be impractical.

To ensure that you have addressed all of the positive and negative consequences of refilling under PERM, we recommend that you consult with your immigration counsel before making a final decision. Given that PERM is a new program, we will not know the full impact of all of the new requirements until the Department of Labor begins adjudicating cases and applying the regulations. Greenberg Traurig will continue providing updates on the program and the agency application and interpretation of the new regulation.