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Joel Stewart on PERM Labor Certification

Options for PERM applicants ineligible for H-1B Extensions

Rating: 2 votes, 5.00 average.

I recently received an e-mail from a reader of this Blog. He is a Professor of medicine, and this year is his sixth year in H-1B status. His PERM case was filed in August, 2008, and his H-1B will expired in June, 2009.

As a reminder, the H-1B visa is issued for a maximum of six years. If the H-1B visa holder has a PERM case pending, the applicant can renew the H-1B additional years, beyond the sixth year, but only if the PERM case was filed before the beginning of the sixth year. In this case, the PERM case was filed AFTER the beginning of the sixth year.

Since the H-1B can not be extended under these circumstances, what will happen to the Professor who would like to continue living and working legally in the US while waiting for the PERM case to be approved?

The Professor asked me if the PERM process could be accelerated to be approved in time for a smooth  transition to an I-485 adjustment of status and I-765 EAD (Employment Authorization Document). Prior to PERM, applications for alien labor certification were decided by regional certifying officers, who, in some cases, were responsive to persuasive communications from local employers or attorneys. This type of expediting was most commonly used to facilitate cases for applicants whose children might turn 21 and "age out."  Unfortunately, there is no way to "expedite" a PERM case that I know of, short of intervention by the Department of Homeland Security, CIA or FBI pressuring the regional PERM center for national security reasons!

Nevertheless, there are several options available to this Professor through a separate and parallel application for residency filed under the first or second preference category, all of which do not require approved PERM applications.

Under First Preference, there is a category for  persons of extraordinary ability in the sciences, arts, education, business, or athletics and for outstanding professors and researchers with at least three years experience in teaching or research, who are recognized internationally. No PERM application is required for these categories.  Depending on the curriculum of this Professor, a viable first preference application might be filed. It would, of course, consist of an I-140 Petition plus an application for residency.

If a first preference application is not appropriate, the Professor could consider applying under the Second Preference, which includes aliens of exceptional ability. Second preference offers also offers the possibility of applying for residency without a pre-approved PERM application by submitting an application with a request for a National Interest Waiver.

Extraordinary ability is at the very high end of qualifications, while exceptional ability refers to qualifications above average, but less than extraordinary. Both categories permit simultaneous filing of petition and application for residency, subject to some country limit backlogs for the second preference.

A Professor of medicine might easily qualify for one of these preferred categories, but what if an application were filed and the petition not approved? What if the INS examiner finds the Professor not qualified as a first or second preference applicant?

Anyone of these applications would probably take at least a year to be adjudicated, and if approved, the Professor would no longer need to continue with the PERM application. However, if the application for 1st or 2nd preference were denied, the applicant would have the PERM application to fall back on instead of being required to depart from the U.S.

Implicit in this strategy is the fact that an applicant for residency can apply through more than one means at the same time. Accordingly, an applicant can consider any number of means to obtain residency, as long as they are valid and viable opportunities.

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  1. Richard Newman, Esq.'s Avatar
    Not a comment, but a question. Does anyone know the state of audited cases that started last November? Several of our cases were audited between November 2007 and around April 2008. Recently, one of those cases was returned (audited responded to in late November 2007). Fortunately for the client, it was approved. I have not heard on any of the other cases, and do not know if they are working on them in order, or at all. Does anyone have any input??


    Richard Newman
  2. Lisa R. Brenman's Avatar
    It is important to remember that the H-1b Petitioner can file to recapture unused H-1b time. The six-year H-1b maximum only counts the time that the H-1b employee is physically in the United States in H-1b status. This means that time the H-1b employee spends outside the US on vacation or holidays does not count toward the six-year maximum. Often, we ask H-1b employees to depart the US before the six-year maximum is reached just so we have more time to prepare and file the PERM application.
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