The New PERM Program: Unanswered Questions

January 24, 2005

There are still many unanswered questions regarding the PERM process, especially in the area of converting existing applications to the PERM program and the impact of a failed conversion on maintaining priority dates. Also, it is unclear how eligibility for H-1B extensions beyond the six-year cap will be impacted by a PERM conversion. Additionally, the acceptable use of education, special requirements and job zones in the PERM process, and the standards and process for revoking approved applications needs to be fleshed out. We will be posting updated information on this program on our website (www.sternelkind.com) as it becomes available. Whether the new PERM program becomes a panacea, a quagmire or something in between will depend in large part on how the Department of Labor resolves these unanswered questions and how, in general, it administers the new PERM program.

The term "conversion" in this context is a misnomer. In order to "convert" an existing labor certification application to the PERM process, an employer must file a new application that meets all of the requirements of the PERM process. In other words, the employer must place new ads, must engage in all of the PERM-dictated recruitment measures and must comply with the PERM regulations regarding prevailing wage, minimum requirements, maintaining documentation, etc. The only aspect of the pre-PERM pending labor certification that is "converted" is the priority date that was obtained in connection with the original application. Of particular concern is the requirement that in order to convert the priority date to the new PERM application, the employer must withdraw the existing, pending labor certification. According to the PERM regulations, in order for conversion to be successful, the job described in the newly-filed PERM application must be "identical" to the job described in the original labor certification application. In other words, the job opportunity, the job title, the location, the job description, and the job requirements must be the same.

Conversion, therefore, can be a risky proposition, particularly for individuals who are impacted by the retrogression in priority dates. Currently, beneficiaries born in India, China, or the Philippines who have filed EB-3 labor certification applications are subject to the retrogression in priority dates. Currently, such individuals cannot file for adjustment of status applications if their labor certification was filed after January 1, 2002. It is possible that the retrogression of priority dates could expand to other employment-based categories (such as EB-2) or to all EB-3 applicants. Therefore, maintaining one's priority date is extremely important to any individual currently impacted or potentially impacted by the retrogression of priority dates in the employment-based categories.

As stated previously, in order to file a "conversion" PERM application, the applicant must withdraw the previously-filed labor certification application. If the Department of Labor determines that the newly-filed PERM application is not "identical" to the previously-filed application or, if for any other reason, the newly-filed application is denied, then the labor certification beneficiary will lose his or her priority date. It is also unclear whether the filing of a "conversion" PERM application will impact a beneficiary's eligibility for an H-1B extension beyond six years which requires the H-1B applicant to demonstrate that a labor certification filed on his or her behalf has been pending for more than one year. In other words, if the previously-filed application is withdrawn and the newly-filed PERM application has been pending for less than one year, will the individual be eligible for a seventh year H-1B extension? To date, neither USCIS nor USDOL has expressed an opinion on this issue.